judge_norm: MICHAEL D LYON

condition: headache

text:
Citation Nr: 9902000
Decision Date: 01/26/99    Archive Date: 02/01/99

DOCKET NO.  96-35 685	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
seizure disorder, and headaches.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Stanley Grabia, Associate Counsel

INTRODUCTION

The veteran had active service from June 1953 to May 1955.
This matter comes before the Board of Veterans� Appeals
(Board) from a rating decision of the New Orleans, Louisiana
Regional Office (RO) of the Department of Veterans Affairs
(VA).

Entitlement to service connection for a temporal lobe seizure
disorder and headaches was denied by a rating decision in
July 1963, as it preexisted service and was not aggravated or
increased in intensity during service.  Headaches were found
to be part of the seizure disorder. The appellant was
notified of that action and failed to timely disagree
therewith, accordingly, that rating became final.

This appeal comes before the Board of Veterans� Appeals
(Board) from the veteran�s subsequent unsuccessful attempts
to reopen his claim.

The RO denied the veteran�s attempts to reopen his claims for
a seizure disorder, and a headache disorder in February 1995,
and January 1996.  In a Statement of the Case dated in July
1996, the RO noted that the veteran�s claim�s file had been
missing at the time of the last rating, and recently located.
A review revealed the prior final determination.

The RO has denied the veteran�s most recent attempt to reopen
his claims on the basis that he has failed to submit new and
material evidence of service connection for the disabilities
in question.  It is noted that the veteran�s initial claim
was for compensation as well as for a pension.  By a rating
decision in July 1997, the RO granted a nonservice pension
for the veteran.  Thus, that issue is in need of no further
appellate consideration at this time.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that the RO erred when it
determined that new and material evidence had not been
received to reopen his claim for entitlement to service
connection for a seizure disorder, and headache disorder.  He
specifically alleges that his current seizure and headache
disorder was initially incurred while on active duty.  It is
asserted that he was struck in the head during training, and
that he had seizures and headaches for the first time after
that trauma.  His representative has joined in these
contentions.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted by the veteran which would permit him to
reopen his claim of entitlement to service connection for a
seizure and headache disorder.

FINDINGS OF FACT

1.  All available, relevant evidence necessary for
disposition of the appellant�s appeal has been obtained by
the RO.

2.  Service connection for a seizure and headache disorder
was denied by the RO in a decision in July 1963, as the
disorder preexisted service and was not aggravated or
increased in intensity during service.  Headaches were found
to be part of the seizure disorder.  The veteran was informed
of this decision and failed to timely disagree therewith,
accordingly, that rating became final.

3.  The evidence received into the record since the prior
denials is not so significant that it must be considered with
evidence previously assembled to fairly decide the merits of
the case as it is cumulative and not probative, and when
viewed in the context of the entire record.

CONCLUSION OF LAW

Evidence received since the July 1963 rating decision,
denying entitlement to service connection for a seizure and
headache disorder, is not new and material and the claim is
not reopened.  38 U.S.C.A. �� 5107, 5108, 7105 (West 1991 &
Supp. 1998); 38 C.F.R. � 3.156(a) (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the  �well grounded�
requirement shall not apply with regard to reopening
disallowed claims and revising prior final determinations.
See Jones v. Brown, 7 Vet. App. 134 (1994).  All pertinent
evidence has been developed and there are no contentions of
additional information which would be useful to this claim.

Service connection was denied for a seizure and headache
disorder in an unappealed rating decision, dated in July
1963.

In making that decision, the RO considered the evidence then
of record which included the appellant�s enlistment and
separation physical examinations, and service medical records
which note that in July through September 1953, he was
treated for epileptiform seizures, headaches, fainting, and
hyperventilation.  The examiner noted that he had several
spells of blackouts in basic training related to unconscious
anger.  The veteran reported that his first attacks were at
age 15. The records noted that the seizures existed prior to
service (EPTS).  There were no further complaints in service.
The separation physical examination was negative.

Post service VA hospital records date from May 1963, and note
complaints of intermittent seizures, moderate dizziness, and
headaches since 1953. The RO found the veteran to be
suffering from a temporal lobe seizure disorder with
headaches which preexisted service, and was not aggravated or
increased in intensity during service, and found the disorder
to be non-service connected.  38 C.F.R. � 3.303.  The veteran
was notified of the denial of benefits; but, failed to
initiate a timely appeal.  Consequently, that determination
is final.  38 U.S.C.A. � 7105.

Prior final rating decisions may only be reopened upon the
receipt of additional evidence which, under the applicable
statutory and regulatory provisions, is both new and
material.  38 U.S.C.A. �� 5108, 7105.  New and material
evidence means evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. � 3.156 (a); Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service.  38 U.S.C.A. �� 1110, 1131 (West 1991 & Supp. 1998);
38 C.F.R. � 3.303 (1998).

To establish service connection for a disability, symptoms
during service, or within a reasonable time thereafter, must
be identifiable as manifestations of a chronic disease or
permanent effects of an injury.  Further, a present
disability must exist and it must be shown that the present
disability is the same disease or injury, or the result of
disease or injury incurred in or made worse by the
appellant�s military service.  Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992); 38 C.F.R. � 3.303(a) (1998).  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 distinguished from merely isolated
findings or a diagnosis including the word �chronic.�
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned.  When the fact
of chronicity in service is not adequately supported, then
the showing of continuity after discharge is required to
support the claim.  38 C.F.R. � 3.303(b).  Service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease occurred in service.  38 C.F.R.
� 3.303(d).

As noted above, service connection for a seizure disorder
with headaches had been denied in July 1963. The service
medical records noted that in July to September 1953, he was
treated for epileptiform seizures, fainting spells,
dizziness, hyperventilation, and headaches.  These were
reported as first occurring when he was 15 years old.  The
records noted that the seizures existed prior to service.
There were no additional complaints of headaches or dizziness
for the remainder of service.

It is also noted that no complaints of any seizure or
headache disorder appear in the record until a VA hospital
summary in May 1963, 8 years after service.  The veteran
complained of intermittent headaches since 1953, accompanied
by moderate dizziness and tendencies towards blacking out.
The examiners noted that during his blackout spells and
frequent episodes of dizziness he tended towards the bizarre.
This summary included an EEG suggestive of a temporal lobe
seizure, treated and improved. He appeared to be extremely
anxious with a passive dependent personality, and a tendency
to overemphasize organic symptomatology, and to escape into
illness, which while organically present were over
exaggerated. Nothing in the records related this pathology to
service.

Rating decisions in February 1995, and January 1996 denied
service connection for seizures and headache disorders.
Apparently the service records were not in the veteran�s file
at the time of these determinations, and the RO was unaware
of the prior final rating action.

An SOC dated in July 1996, noted that the veteran�s claim�s
file had been located.  A review revealed the previous final
denial of service connection for seizures and headaches in
July 1963.

At a hearing at the RO in October 1996, the veteran denied
having seizures when he was 15 years old, and testified that
his seizures and headaches began after being hit in the head
with a rifle.  After the trauma his head swelled, and he
complained of pain, bruises and infection in his head. A
private in charge attempted to keep his injury hidden from
the unit commander.  He was treated secretly, after duty
tours, and on weekends, and no records were kept.
Subsequently he had epileptic seizures, or blackouts.  He
reportedly no longer has total falling out seizures. He would
get dizzy and have headaches, but never had taken any
medication for seizures, other then aspirin.  He was recently
found 100 percent disabled by the Social Security
Administration, but was not evaluated for seizures, only for
headaches.

In a VA examination in June 1997, he again reported his first
seizure was in service.  Following service he had his second
seizure and took Dilantin for a year. He did not have any
more seizures for several years, until about 3 or 4 months
ago when he had 2 seizures, one of which was witnessed by his
wife.  He was dizzy and passed out, with no aura or warning.
His wife stated that he had tonic clonic convulsions for a
few seconds, then woke up confused, and had to go to the
bathroom.  He was seen at the Baton Rouge clinic but was not
put on any medication.  An EEG was normal.

His headaches had reportedly continued for several years.  At
first they were very frequent and then gradually eased.  He
was however again having them more frequently. They are
characterized as starting in the left temporal region with
severe eye pain throbbing in character and radiating to the
back of the head.  He has photophobia, and takes Bufferin to
ease his pain and tries to sleep.  He gets 2 headaches a week
lasting for 1 to 2 hours.  The diagnosis was a possible
seizure disorder although he had remission for a long time,
and migraine headaches.

By a rating decision in July 1997, the RO denied service
connection for a seizure and headache disorder as no new and
material evidence to reopen the claims were received.  The RO
however granted a nonservice pension.

VA medical summaries from August 1997 noted that a tomography
in June 1997 revealed a  pineal mass.  An
electroencephalogram indicated several areas of epileptic
activity. An MRI of the brain noted patchy increased signal
in the periventricular and deep white matter of the brain,
otherwise the brain demonstrated normal signal and
morphology. None of these records, some of which were new to
evaluators, associate the pathology noted with any event or
occurrence in service.

At the time of the prior decision, it was held that a seizure
disorder and headaches pre-existed service and were not
aggravated therein.  Significantly, none of the records
contained any history of head trauma, nor is it indicated
that there was treatment for head trauma.  The appellant
contends now that this is because it was kept quiet.  The
records reveal, however, treatment for the seizures and
headaches, with a specific history of preservice episodes.
The reported head trauma was not noted in the post-service
period when the appellant claimed service connection for the
pathology.

Moreover, the appellant is not competent to associate any
reported in-service head trauma with seizures, and such
connection is not made by any competent evidence on file.
Thus, evidence added to the record since the last denial is
not new and material and the claims are not reopened.

ORDER

New and material evidence has not been submitted to reopen a
claim of entitlement to service connection for a seizure and
headache disorder, and the appeal is denied.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


series: legacy

judge_norm: RONALD R BOSCH

judge_role: Member, Board of Veterans' Appeals

disposition: granted

condition: tinnitus

disposition: denied

condition: gi

disposition: remanded

text: This claim must be afforded expeditious treatment by the M&ROC. The law requires that all claims that are remanded by the Board or by the United States Court of Veterans Appeals (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103- 446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the M&ROCs to provide expeditious handling of all cases that

text:
Citation Nr: 9903000
Decision Date: 02/02/99    Archive Date: 02/10/99

DOCKET NO.  96-17 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center
in Cheyenne, Wyoming

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a stomach disorder.

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

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K.L. Salas, Associate Counsel

INTRODUCTION

The veteran had active military service from September 1965
to November 1968.

This appeal arose from an October 1994 rating decision by the
Department of Veterans Affairs (VA) Cheyenne, Wyoming Medical
and Regional Office Center (M&ROC).  The M&ROC denied the
veteran's claims for entitlement to service connection for
tinnitus, a stomach disorder, and a nervous disorder to
include PTSD.

The case has been forwarded to the Board of Veterans' Appeals
(Board) for appellate review.

The claim for entitlement to service connection for PTSD is
addressed in the remand portion of this decision.

FINDINGS OF FACT

1.  The veteran was exposed to noise from trucks, shelling,
and other sources in service and was treated for otitis media
with tinnitus in service.

2.  The veteran reported ongoing tinnitus after service and
there is a current diagnosis of tinnitus based on a history
of noise exposure in service.

3.  The claim for entitlement to service connection for a
stomach disorder is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.

CONCLUSIONS OF LAW

1.  Tinnitus was incurred in active service.  38 U.S.C.A.
�� 1110, 5107 (West 1991); 38 C.F.R. � 3.303 (1998).

2.  The claim for entitlement to service connection for a
stomach disorder is not well grounded.  38 U.S.C.A. � 5107
(West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Entitlement to service connection for
tinnitus.

Factual Background

The veteran's enlistment examination report was negative for
any ear problems.  The veteran served in Vietnam from June
1967 to June 1968.

In November 1967, the veteran was treated for otitis media.
He complained of tinnitus with a muffled hollow quality to
sounds as well as his own voice.  He denied any previous
similar problem.  The tympanic membranes were retracted with
fluid.  The impression was an upper respiratory tract
infection with bilateral serous otitis media.  An audiogram
showed bilateral conductive and high frequency hearing loss.
On discharge in October 1968 the veteran reported ear, nose
or throat trouble, but not running ears or hearing loss.

Service records show that the veteran worked as a truck
driver and cook in service.  His DA Form 20 shows that in
January 1968 the veteran was with the 805th Transportation
Company.

Information received from the U.S. Army and Joint Services
Environmental Support Group or "ESG" (now redesignated the
U.S. Armed Services Center for Research of Unit Records or
"USASCRUR") shows that the 805th Transportation Company came
under rocket attack in April 1968 resulting in casualties.

The veteran claimed that he received treatment for his
hearing problem in 1982 through the Easter Seal Society.  A
request for records was made.  The Easter Seal Society
responded that records were only kept for 10 years and that
records of his treatment were no longer available.

The veteran underwent a series of VA examinations in November
1995 and January 1996.  On his ear examination the veteran
reported that while in Vietnam he drove a truck.  He also
reported several instances of incoming mortar fire.  He
reported that a round exploded near him and that for four to
five months he felt like he was in a barrel (his speech
didn't sound good to him and he had ringing in both ears).
He also mentioned that he had been exposed to other loud
noises in Vietnam.

The veteran reported that ringing in the ears persisted after
service.  He stated that the sensation was worse in the right
ear.  On examination both ear drums were intact and appeared
normal.  The examiner gave an impression of chronic tinnitus.
An audiogram for evaluation of hearing loss was ordered.

In connection with the audiological evaluation, the veteran
gave a history of constant ringing tinnitus in both ears that
was first noted in 1968.  He reported that it was masked by
environmental sounds and was aggravated by certain stimuli
(although those stimuli were not listed).  He denied that
tinnitus handicapped him in any way.  The veteran rated his
tinnitus 5/5 or severe, while the examiner rated the tinnitus
as 3/5 or moderate in severity.  On the audiogram report the
audiologist wrote that the veteran "experiences a ringing
tinnitus in each ear that is constant."  According to the
audiologist, the tinnitus was first noticed in 1968.

A follow-up VA examination report was received in November
1995.  Hearing tests showed bilateral high frequency
neurosensory hearing loss, mainly about 3000 Hertz.  The
doctor noted that this was probably related to noise exposure
and acoustic trauma the veteran suffered.

On a general Agent Orange examination conducted in November
1995 the veteran reported ringing in his ears.  The veteran's
tympanic membranes were bright bilaterally.

Subsequently submitted outpatient records contain notations
of a history of tinnitus but do not contain further analysis
of the etiology of tinnitus.

The veteran provided testimony in support of his claim for
service connection for tinnitus before a hearing officer at
the M&ROC in March 1997.

The veteran underwent a VA examination in February 1998
during which he reported tinnitus.  Examination of the ears
and hearing was reportedly normal.  The examiner gave an
impression of tinnitus.

Criteria

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service.  38 U.S.C.A. � 1110.

Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. This may be
accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions.

Each disabling condition shown by a veteran's service
records, or for which service connection is sought must be
considered on the basis of the places, types and
circumstances of the veteran's service as shown by service
records, the official history of each organization in which
the veteran served, medical records and all pertinent medical
and lay evidence. Determinations as to service connection
will be based on review of the entire evidence of record,
with due consideration to the policy of VA to administer the
law under a broad and liberal interpretation consistent with
the facts in each individual case.  38 C.F.R.
� 3.303(a)(1998).

With chronic disease shown as such in service (or within the
presumptive period under � 3.307) so as to permit a finding
of service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestation of joint pain, any abnormality of heart action
or heart sounds, any urinary findings of casts, or any cough,
in service will permit service connection of arthritis,
disease of the heart, nephritis, or pulmonary disease, first
shown as a clear-cut clinical entity, at some later date. 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 distinguished from merely isolated
findings or a diagnosis including the word "Chronic." When
the disease identity is established (leprosy, tuberculosis,
multiple sclerosis, etc.), there is no requirement of
evidentiary showing of continuity. Continuity of
symptomatology is required only where the condition noted
during service (or in the presumptive period) is not, in
fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim.  38 C.F.R. � 3.303(b)(1998).

Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d) (1998).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (190).

When ,after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. � 5107(b) (West 1991);  38 C.F.R. �� 3.102, 4.3
(1998).

Analysis

The Board has carefully considered the evidence compiled by
and on behalf of the veteran and determined that the veteran
has submitted a well grounded claim for entitlement to
service connection for tinnitus within the meaning of
38 U.S.C.A. �5107(a).  He had tinnitus in service, and
although it was not shown to be chronic, he reported ringing
in the ears after service, and a diagnosis of current
tinnitus was made based on the veteran's history of
characteristic ringing in the ears.  See 38 C.F.R.
� 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  The
Board is satisfied that all relevant facts have been
adequately developed for the purpose of adjudicating the
veteran's claim; no further assistance to the veteran in
developing the facts pertinent to his claims is required to
comply with the duty to assist the veteran as mandated by
38 U.S.C.A. � 5107(a).

The only problem is that the post service diagnosis of
tinnitus was seemingly based primarily on a history of
exposure to noise (and specifically enemy fire) in service.
The veteran's medical records show no treatment for tinnitus
due to acoustic trauma and contain no history of close range
exposure to an explosion as was alleged by the veteran.
Medical evidence is not credible if based on inaccurate
factual premise or history. Reonal v. Brown, 5 Vet. App. 458
(1993).

However, notwithstanding that the veteran was not shown to
have been treated for tinnitus after acoustic trauma in
service, giving him the benefit of the doubt, the Board is of
the opinion, based on the evidence of record as a whole, that
the onset of the veteran's tinnitus was in service, and
therefore service connection is established.  38 C.F.R.
� 3.303(d).

The USASCRUR has verified that the veteran's unit received
damage and casualties as a result of rocket fire during the
time the veteran was there.  The record also suggests that
the veteran worked as a truck driver during service at least
part of the time he was in service, and the veteran also
reported other unspecified types of noise exposure - a
contention that is not refuted.  Therefore it seems likely
that the veteran was exposed to loud noise in service.
Furthermore, the fact remains that the veteran (1) had
tinnitus in service, (2) made unrebutted contentions of
ongoing tinnitus after service, and (3) has current tinnitus.
Doubt as to the exact etiology of the currently noted
tinnitus is resolved in the veteran's favor.

II.  Entitlement to service connection
for a stomach disorder.

Factual Background

On his claim the veteran claimed stomach trouble in 1968 and
1969.

Service medical records are negative for a chronic stomach
disorder.  In July 1967 the veteran was treated for symptoms
including nausea and vomiting, diagnosed as post viral
asthenia and a question of viral enteritis.  There was also a
notation of vomiting in April 1968 but the entry was
scratched out.  On discharge in October 1968 there was no
indication of any chronic disorder or of any abnormality of
the gastrointestinal system.  The veteran did not report any
history of gastrointestinal symptoms.  A U.S. Army Reserves
enlistment examination report from 1978 was likewise negative
for any abnormality of the stomach or history of a stomach
disorder.

The veteran underwent VA examinations in November 1995 and
January 1996.  When he was initially examined in November
1995, he reported a 30 to 40 pound weight loss over two years
and a 25 pound weight loss over the last six months.  The
veteran related that he had a history of peptic ulcer
disease.  He reported that he had had bright red blood in his
stools for about a year but he denied having seen a
physician.  On examination the veteran appeared chronically
ill.  He was 6 feet tall but weighed only 65.5 kilograms (144
pounds).  The doctor ordered tests including a barium enema,
an intravenous pyelogram (IVP), a flexible sigmoidoscopy, and
a computed tomography (CT) of the abdomen.

CT of the abdomen showed thickening of the gastric wall of
undetermined origin.  An endoscopy or upper gastrointestinal
tract (upper GI) was recommended.  Chemistry profile was
within normal limits.  There was a small amount of blood
found in the urine. The barium enema resulted in an
impression of colonic diverticulosis.  There was no evidence
of diverticulitis and no convincing mass lesion or annular
constricting lesion was identified.  The IVP was within
normal limits.

VA outpatient treatment records were obtained.  These contain
additional records of the tests ordered as part of the
veteran's VA examination.  The flexible sigmoidoscopy
performed in November 1995 showed a small hemorrhoid and a
few diverticula.

Esophagogastroduodenoscopy was essentially normal.  Biopsies
of the stomach and small intestine were taken.

Duodenal mucosal biopsies were within normal limits.  Gastric
biopsy showed active chronic gastritis which was moderately
severe and which was associated with many organisms
consistent with Helicobacter pylori.  No dysplasia or
malignancy was seen.  There was no opinion on etiology of the
gastritis or Helicobacter pylori infection.

A record from November 1995 notes that the veteran denied
anorexia, nausea, vomiting, indigestion/pain with meals,
dysphagia and diarrhea.

A colonoscopy from January 1996 showed no abnormality.

In May 1996 the veteran underwent a surgical hernia repair
for an epigastric hernia.  The veteran had a lump on the
stomach indicated as being above the umbilicus.  He reported
that it had been there for 10 years.

During several VA psychological therapy visits including
visits in September 1996 and February 1997 the veteran
reported that he was having an upset stomach and diarrhea.
He associated the symptoms with an increased dose of
medications including Zoloft and Lithium.

In March 1997 the veteran provided testimony in support of
his claim for service connection for a stomach disorder
before a hearing officer at the M&ROC.

In March 1997 the veteran was seen for upper mid epigastric
tenderness and acid taste.  An upper GI series was
recommended to rule out a peptic ulcer.  Tagamet was
prescribed.  In March 1997 the veteran weighed 68 kilograms
or 150 pounds.  On follow-up the veteran's symptoms were not
responding to Tagamet and the veteran was having abdominal
tenderness.

In April 1997 the veteran reported epigastric pain.  He gave
a history of peptic ulcer disease in high school.  The pain
reportedly responded to Fomotidine but not to Tagamet.  The
doctor did not feel that the veteran was taking Fomotidine
properly.

The veteran underwent a VA examination in February 1998.  He
reported a problem with stomach ulcers.  He noted that they
started in high school and were diagnosed as peptic ulcers.
He denied hemoptysis.  He reported rectal bleeding in 1996
that was diagnosed as a question of hemorrhoids.  He reported
that he currently had epigastric pain once per month lasting
up to five days.  It was noted that tests were positive for
Helicobacter pylori in December 1997 but that he did not take
a course of treatment.

On examination the veteran weighed 62 kilograms and he looked
emaciated.  He reported a normal weight of 64 to 68 kilograms
and a maximum weight of 92 kilograms.  On examination of the
abdomen there were active and normal bowel sounds.  There
were no masses or tenderness.  The liver was of normal size
and was non-tender.  Laboratory tests were within normal
limits with the exception of hemoglobin, which was 14.9.  The
assessment with regard to the complaint of stomach ulcers was
Helicobacter pylori infestation, a question of an occult
bleed based on hemoglobin readings, previous diagnosis of
peptic ulcer.  The examiner noted the previous upper GI
results and posed the question of a possible duodenal ulcer.

The veteran attended a hearing at the M&ROC in March 1998.
His representative contended that the veteran had ulcers that
he was told relate to his nervous condition.  He testified
that he had a lump removed from his stomach.  He recalled
that something was herniated.  He testified that he was never
told what caused it.

Criteria

As previously noted service connection may be granted for
disability resulting from disease or injury incurred in
wartime service.  38 U.S.C.A. � 1110;  38 C.F.R. � 3.303.
Service connection may also be established for permanent
aggravation in service of a preexisting disorder or for a
disorder incurred secondary to a service nephritis or acute
endocarditis due to intercurrent infection (with or without
identification of the pathogenic micro-organism); or (2)
where a disease is the result of drug ingestion or a
complication of some other condition not related to service.
Unless the clinical picture is clear otherwise, consideration
will be given as to whether an acute condition is an
exacerbation of a chronic disease. Id.

If not shown during service, service connection may be
granted for peptic ulcer disease if manifested to a
compensable degree during the first post service year.
38 U.S.C.A. � 1101, 1112, 1113 (West 1991 & Supp. 1998);
38 C.F.R. �� 3.307, 3.309 (1998).

Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible.  Grivois v. Brown, 6 Vet. App. 136, 139
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).

A well grounded claim for entitlement to service connection
requires medical evidence of a current disability, medical,
or in some circumstances lay evidence of inservice incurrence
or aggravation of a disease or injury, and medical evidence
of a nexus between the claimed inservice disease or injury
and the present disease or injury.  Caluza v. Brown, 7 Vet.
App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996).  The second and third elements can also be satisfied
by evidence that a condition was "noted" in service or
during an applicable presumptive period; evidence showing
post service continuity of symptomatology; and medical or, in
certain circumstances, lay evidence between the present
disability and the post service symptomatology.  38 C.F.R.
� 3.303(b); Savage.  See also Sacks v. West, 11 Vet. App. 314
(1998).  In addition, in the absence of proof of a present
disability there can be no valid claim.  Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).

Where the determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required.  Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).   The claimant does not
meet this burden by merely presenting his lay opinion because
he is not a medical health professional and does not
constitute competent medical authority.  Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).  Lay assertions cannot
constitute cognizable evidence, and as cognizable evidence is
necessary for a well grounded claim, Tirpak v. Derwinski, 2
Vet. App. 6-9, 611 (1992), a claim based only on the
veteran's lay opinion is not well grounded.

The Court has held that if the veteran fails to submit a well
grounded claim, VA is under no duty to assist in any further
development of the claim.  38 U.S.C.A. � 5107(a); Gilbert v.
Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d
1464 (Fed.Cir. 1997); 38 C.F.R. � 3.159(a) (1998).

When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied.  Gilbert v.
Derwinski, 1 Vet. App. 49 (190).

When ,after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. � 5107(b) (West 1991);  38 C.F.R. �� 3.102, 4.3
(1998).

Analysis

The Board's review of the evidentiary record discloses that
no chronic stomach disorder was shown in service or for many
years thereafter, and the entire evidentiary record is devoid
of a link between the veteran's current stomach symptoms and
stomach symptoms shown during active service.  The only
established diagnoses pertaining to the stomach are gastritis
consistent with Helicobacter pylori infection and a hernia
removal.  Neither gastritis nor a hernia was shown in
service, and such post service reported disorders have not,
on the basis of competent medical authority, been linked to
the veteran's period of active service.  Peptic ulcer disease
noted many years following service was not disabling to a
compensable degree during the first post service year, and
has otherwise not been linked, on the basis of competent
medical authority, to the veteran's period of service or any
incident therein.

38 C.F.R. � 3.303(b) provides that evidence of continuity of
symptomatology after service may help to establish a nexus
between a disease not shown to be chronic in service and the
same disorder after service.  See also Savage.  The veteran's
lay testimony however is not sufficient to link his stomach
symptoms in service and currently diagnosed gastritis.  A
layperson without medical training or experience is not
competent to offer medical diagnoses or opinions on etiology.
Espiritu.

Medical evidence is necessary at a minimum to determine
whether symptoms post service are consistent with a nexus
between in service and post service diagnoses.  Savage;
Sacks.

The Board notes that the veteran has not submitted any
competent medical evidence to show that under any of the laws
and regulations pertaining to service connection claims, he
has a chronic acquired gastrointestinal disorder linked to
his period of active service.

As it is the province of trained health care professionals to
enter conclusions that require medical opinions as to
causation, Grivois, the veteran's lay opinion is an
insufficient basis upon which to find his claim well
grounded.  Espiritu.  Accordingly, as a well grounded claim
must be supported by evidence, not merely allegations,
Tirpak, the veteran's claim for service connection for a
stomach disorder must be denied as not well grounded.

Although the Board considered and denied the appellant's
claim on a ground different from that of the M&ROC, which
denied the claim on the merits, the appellant has not been
prejudiced by the decision.  This is because in assuming that
the claim was well grounded, the M&ROC accorded the appellant
greater consideration than his claim in fact warranted under
the circumstances.  Bernard v. Brown, 4 Vet. App. 384 (1993).

In light of the implausibility of the appellant's claim and
the failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for service connection for
a stomach disorder.

The Board further finds that the M&ROC has advised the
appellant of the evidence necessary to establish a well
grounded claim, and the veteran has not indicated the
existence of any specific post service medical evidence that
has not already been obtained that would well ground his
claim.  McKnight v. Gober, 131 F.3d 1483 (Fed.Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).

ORDER

Entitlement to service connection for tinnitus is granted.

The veteran not having submitted a well grounded claim of
entitlement to service connection for a stomach disorder, the
appeal is denied.

REMAND

This claim must be afforded expeditious treatment by the
M&ROC.  The law requires that all claims that are remanded by
the Board or by the United States Court of Veterans Appeals
(Court) for additional development or other appropriate
action must be handled in an expeditious manner.  See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. � 5101
(West Supp. 1998) (Historical and Statutory Notes).  In
addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the M&ROCs 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.

Service connection for post-traumatic stress disorder
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor. If the claimed stressor is
related to combat, service department evidence that the
veteran engaged in combat or that the veteran was awarded the
Purple Heart, Combat Infantryman Badge, or similar combat
citation will be accepted, in the absence of evidence to the
contrary, as conclusive evidence of the claimed inservice
stressor. Additionally, if the claimed stressor is related to
the claimant having been a prisoner-of-war, prisoner-of-war
experience which satisfies the requirements of � 3.1(y) of
this part will be accepted, in the absence of evidence to the
contrary, as conclusive evidence of the claimed inservice
stressor.  38 C.F.R. � 3.304(f) (1998).

Case law and regulations require an analysis of whether the
veteran was engaged in combat and then a specific
determination is to be made as to which, if any, stressors
have been sufficiently established either by satisfactory lay
evidence (where combat is shown) or by competent credible
supporting evidence.  Cohen v. Brown, 10 Vet. App. 128
(1997); Gaines v. West, 11 Vet. App. 353 (1998).  38 U.S.C.A.
� 1154(b) (West 1991).

The Board is not persuaded that adequate development has been
accomplished to verify the veteran's claimed inservice
stressors.

The veteran indicated at his hearing that he had a number for
a fellow serviceman, "Sergeant Montgomery" who he was
trying to contact.  According to the veteran Sergeant
Montgomery was an eyewitness to one of the veteran's reported
stressors - the death of a Vietnamese woman who the veteran
was taking for medical treatment.  The veteran should be
provided with an additional opportunity to submit this
statement as corroboration of the veteran's stressor is
central to his claim.  Sergeant Montgomery may also be able
to provide additional information relevant to corroborating
other portions of the veteran's account of his inservice
stressors.

Also, as noted above the USASCRUR did verify that there had
been shelling of the organization to which the veteran had
been attached in Vietnam during a time in which he was in
Vietnam but could not verify the death of an individual who
the veteran identified.  The USASCRUR recommended that the
M&ROC obtain morning reports.  It does not appear that these
morning reports were requested.

The Board is of the opinion that the veteran should be given
an additional opportunity to submit additional evidence to
support his account of stressors to include specific dates or
names and any corroborating statements from fellow service
members.

After that is accomplished the veteran must be provided with
a VA examination in order to determine whether the veteran
has PTSD and to ascertain whether the verified stressor (or
stressors) could have caused PTSD.

Under Cohen, a diagnosis of PTSD based on reported stressors
is adequate to show the sufficiency of the stressors to cause
PTSD.  However, a diagnosis must be based on established
stressors because as noted previously medical opinion based
on inaccurate factual premise or history may lack competency
and credibility. Reonal.

The Board is of the opinion that a contemporaneous
examination of the appellant as well as association with the
claims file of any additional records of treatment that may
have accumulated during the course of the appeal would
materially assist in the adjudication thereof.

Therefore, pursuant to VA's duty to assist the appellant in
the development of facts pertinent to his claim under
38 U.S.C.A. � 5107(a) (West 1991), and to ensure that the
veteran is afforded due process, 38 C.F.R. � 3.103(a) (1998),
the Board is deferring adjudication of the issue of
entitlement to service connection for PTSD pending a remand
to the M&ROC for further development as follows:

1.  The M&ROC should request copies of
morning reports pertaining to the
veteran's unit in Vietnam.

2.  The veteran should be provided with
an opportunity to submit additional
materials in support of his claim to
include lay statements (to include a
statement from Sergeant Montgomery or
fellow service members) pertaining to the
veteran's in service stressors and
experiences.  The M&ROC may request the
veteran to submit an additional statement
with regard to his in service stressors.
However, the M&ROC should specify why
prior statements are inadequate and what
additional information should be
provided.

3.  The M&ROC should request the veteran
to identify the names, addresses, and
approximate dates of treatment for all
health care providers, VA or private,
inpatient or outpatient, who may possess
additional records pertinent to his
claim.  After obtaining any necessary
authorization, the M&ROC should request
and associate with the claims file
legible copies of the veteran's complete
treatment reports from all sources
identified which have not previously been
secured. Regardless of the veteran's
response, the M&ROC should secure all
outstanding VA treatment reports.

4.  The M&ROC should compile a detailed
statement of the veteran's stressors from
the evidence in the claims folder
including medical histories, testimony,
written statements, and service records.
This statement, and copies of supporting
documents should be submitted to the
USASCRUR with a request for verification
of the veteran's stressors.  Other
development related to the veteran's
stressors should be accomplished to the
extent possible before the statement is
prepared and forwarded to the USASCRUR.

5.  After a response is received from the
USASCRUR the M&ROC should make a
determination as to whether the veteran
was exposed to a stressor or stressors in
service, and if so, the nature of the
specific stressor or stressors.  If the
M&ROC determines that the record
establishes the existence of a stressor
or stressors, the M&ROC must specify what
stressor or stressors in service or prior
to service it has determined are
established by the record.  N reaching
this determination, the M&ROC should
address any credibility questions raised
by the record.

6.  If at least one claimed stressor is
established, the veteran should be
provided with an examination by a board
of two qualified psychiatrists who, if
possible, have not previously examined
him, in order to determine the nature and
etiology of any psychiatric disorder(s).
The claims file and a separate copy of
this remand must be made available to and
reviewed by the examiners prior and
pursuant to conduction and completion of
the examination and the examination
report(s) must be so annotated in this
regard.  Prior to the examinations, the
M&ROC is to inform the examiners of the
results of its determination in paragraph
(5) above as to the existence of a
stressor or stressors.  The examiners
should report Axis I and II diagnoses
present, if any, discuss any psychosocial
stressors, and resolve any conflicts
found between their findings and the
diagnostic findings noted in the evidence
associated with the claims file.  With
regard to PTSD, the M&ROC must specify
for the examiners the stressor or
stressors that it has determined are
established by the record and the
examiners must be instructed that only
those events may be considered for the
purpose of determining whether the
appellant was exposed to a stressor in
service.

The examination reports should reflect
review of pertinent material in the
claims folder.  If a diagnosis of PTSD is
made, the examiners should specify:

(1) whether each alleged stressor found
to be established by the record by the
M&ROC was sufficient to produce PTSD;

(2) whether the remaining diagnostic
criteria to support the diagnosis of PTSD
have been satisfied; and

(3) whether there is a link between the
current symptomatology and one or more of
the in-service stressors found to be
established by the record by the M&ROC
and found to be sufficient to produce
PTSD by the examiners.  The examination
reports should include the complete
rationale for all opinions expressed. Any
further indicated special studies , to
including psychological testing and
evaluation should be accomplished.

7.  Thereafter, the M&ROC should review
the claims file to ensure that all of the
foregoing requested development has been
completed.  In particular, the M&ROC
should review the requested examination
reports and required opinions to ensure
that they are responsive to and in
complete compliance with the directives
of this remand and if they are not, the
M&ROC should implement corrective
procedures.  Stegall v. West, 11 Vet.
App. 268 (1998).

8.  After undertaking any development
deemed essential in addition to that
specified above, the M&ROC should
readjudicate the issue of entitlement to
service connection for PTSD with
consideration of all applicable law and
regulations.

If the benefit requested on appeal is not granted to the
veteran's satisfaction, the M&ROC should issue a Supplemental
Statement of the Case.  A period of time for a response
should be afforded.

Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order.  By this
remand, the Board intimates no opinion as to any final
outcome warranted.  No action is required of the veteran
until he is notified by the RO.

	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1998), a decision of the Board granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, � 402,
102 Stat. 4105, 4122 (1988).  The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board.  Appellate
rights do not attach to those issues addressed in the remand
portion of the Board's decision, because a remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.  38
C.F.R. � 20.1100(b) (1998).

- 8 -


judge_norm: C W SYMANSKI

condition: knee

text:
Citation Nr: 9905000
Decision Date: 02/24/99    Archive Date: 03/03/99

DOCKET NO.  97-20 108	)	DATE
	)
	)

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

THE ISSUES

Entitlement to service connection for residuals of an injury
to the lower back.

Entitlement to service connection for residuals of injuries
to both feet.

Entitlement to service connection for residuals of injuries
to both knees.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Todd R. Vollmers, Associate Counsel

INTRODUCTION

The veteran had active service from March 1986 to April 1989.

This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania, in August 1996 that denied the claimed
benefits.

The issues concerning service connection for lower back and
foot disabilities will be addressed in the Remand that
follows this decision.

FINDINGS OF FACT

1. The claim for service connection for residuals of injuries
to both knees is not accompanied by any medical evidence
to support the claim.

2. The claim for service connection is not plausible.

CONCLUSION OF LAW

The claim for service connection for residuals of injuries to
both knees is not well grounded.  38 U.S.C.A. � 5107 (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's service medical records show that the veteran's
lower extremities, including the knees, were found to be
normal during his enlistment examination in October 1985 and
on his discharge examination in April 1989.  The veteran's
service medical records contain a July 1987 notation that he
had fallen many times in his job as a wireman.  No reference
was made to any treatment or complaints concerning his knees.

Private medical records dated January to July 1996 reflect
treatment for other conditions and do not note any complaints
or abnormal clinical findings regarding either knee.

A VA physical examination of the veteran took place in
October 1996.  The report stated that the veteran gave
complaints of pain in the right and left knee that he
described as slight.  He was walking 2 miles per day.  The
examiner reported that there was no swelling, deformity,
lateral instability, or other impairment of either knee.  The
examiner noted the veteran's report of falling 36 feet from a
telephone pole while in service, at which time he injured his
back, foot and ankle on the right side and his knee joint.
The diagnoses included "arthralgia of the left knee joint.
The veteran said that he is not worried about his right knee
joint which is not bothering him at the present time."
Tests recommended during the October 1996 VA examination
included x-rays of the right knee joint.  Reportedly, the
veteran declined to have any x-rays done.

Analysis

Service connection connotes many factors, but basically means
that the facts, as shown by the evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with military service or, if pre-existing
such service, was aggravated therein.  38 U.S.C.A. �  1131.
This determination requires a finding of a current disability
that is related to an injury or disease incurred during
service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993);
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).

A person submitting a claim for VA benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.  38
U.S.C.A. �  5107(a); see also Carbino v. Gober, 10 Vet. App.
507 (1997).  A well grounded claim is a "plausible claim,
one which is meritorious on its own or capable of
substantiation.  Such a claim need not be conclusive but only
possible to satisfy the initial burden of �  [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990).  The United
States Court of Veterans Appeals (Court) has held that a
claim must be accompanied by supportive evidence and that
such evidence "must justify a belief by a fair and impartial
individual that the claim is plausible."  Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992).  In order for a claim
to be well grounded, there generally must be (1) a medical
diagnosis of a current disability; (2) medical, or in some
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service injury or disease and the
current disability (including through statutory presumptions
that certain diseases manifesting themselves within certain
prescribed periods of time are related to service).  Epps v.
Brown, 9 Vet. App. 341, 343-44 (1996), aff'd sub nom. Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown,
7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table).

The quality and quantity of the evidence required to meet the
veteran's burden will depend upon the issue presented by the
claim.  Where the issue is factual in nature, competent lay
testimony, even if only consisting of the veteran's
testimony, may constitute sufficient evidence to establish a
claim as well grounded.  However, where the issue involves
medical causation or a medical diagnosis, it requires
competent medical evidence establishing the claim as
plausible or possible.  Evidentiary assertions by the
appellant must be accepted as true for purposes of
determining whether a claim is well grounded, except where
the evidentiary assertion is inherently incredible.  King v.
Brown, 5 Vet. App. 19 (1993).  Nevertheless, a claimant does
not meet his burden by merely presenting lay testimony,
including his own, since lay persons are not competent to
offer medical opinions.  Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).  Lay assertions of medical causation or
diagnosis cannot constitute evidence to render a claim well
grounded under �  5107(a); if no medical evidence is
submitted to support a claim, the claim cannot be well
grounded.  Tirpak v. Derwinski, 2 Vet. App. at 610-11 (1992).

The veteran has submitted evidence of a diagnosis of
arthralgia in the left knee joint.  The diagnosis given with
the October 1996 VA examination included "arthralgia of the
left knee joint."  No diagnosis was given for the right knee
joint since the VA examiner stated that "the veteran said
that he is not worried about his right knee joint which is
not bothering him at the present time."  No abnormal
clinical findings or pathology of either knee has been
reported.

The veteran states that he incurred his knee condition after
a fall while on active duty in 1986.  However, the veteran's
service medical records do not contain any references of
treatment for a knee condition.  The veteran's knees were
examined during his discharge examination in April 1989, and
no abnormalities were noted.  The veteran has not submitted
any evidence, other than his assertion of a knee condition
after a fall, that indicates that he incurred a knee
condition while he was in service.

Most importantly, the veteran has not submitted any evidence
of a current right knee disorder, or any evidence to connect
any current knee disorder with an injury or disease that
occurred during his military service.  Although the veteran's
statements and testimony must be accepted as true for
determining whether his claim is well grounded, his opinion
that an alleged knee condition from his time in service is
the cause of current problems with his knees is entitled to
no probative weight because, as a layperson, he is not
competent to offer such an opinion.  Espiritu.  Medical
evidence regarding medical diagnosis and etiology is
required.  In this case, there is no medical evidence showing
a current right knee disorder or an etiological relationship
between any current problems with either of his knees and an
injury or disease incurred while he was in service.

Therefore, the criteria for establishing a well grounded
claim under Caluza v. Brown are not met, since the veteran
has not provided any medical evidence of a current right knee
disability or evidence showing a nexus between any knee
disability and an in-service injury or disease.  Lacking such
evidence, the veteran's claim is not plausible and so must be
denied as not well grounded.

ORDER

In the absence of a well grounded claim, service connection
for residuals of injuries to both knees is denied.

REMAND

The veteran's service medical records reflect several
complaints of lower back pain and foot pain.  The veteran
continued to seek treatment for his lower back pain from
private physicians after his separation from the military.
In addition, the VA examination of October 1996 includes
diagnoses of "chronic low back pain of unclear etiology
although [the veteran] has history of injury - fell 36 feet
from a telephone pool [sic] - in the Marine Corp amd [sic]
injured his back;" and "chronic foot pain after he fell 36
feet from the telephone pole."  Additional medical
information is needed to determine the etiology of the
veteran's current lower back and foot complaints, and what
nexus they may have to lower back and foot complaints during
service.

Accordingly, this case is REMANDED to the RO for the
following additional actions:

1.  With any needed signed releases from
the veteran, the RO should request copies
of up-to-date records of any examination
or treatment, VA or private, the veteran
has received for lower back pain or foot
pain.  All records so received should be
associated with the claims file.

2.  The RO should then schedule the
veteran for an orthopedic examination.
The claims folder must be made available
to and be reviewed by the examiner in
conjunction with the examination.  All
special tests, including x-rays, deemed
necessary by the examiner should be
completed.  The examiner's report should
describe in detail all current symptoms,
pertinent clinical findings, and
diagnoses concerning any lower back or
foot disorder present.  The orthopedic
examiner should be requested to provide
an opinion as to whether it is at least
as likely as not that any current lower
back or foot disorder is connected to
lower back or foot problems noted during
the veteran's service.

3.  The RO should then review all the
evidence of record, and again consider
the veteran's claims for service
connection for lower back and foot
disability.  If action taken remains
adverse to the veteran, he and his
accredited representative should be
furnished with a supplemental statement
of the case concerning all evidence added
to the file since the last statement of
the case, and they should be given an
opportunity to respond thereto.  The case
should then be returned to the Board for
further appellate consideration, if
otherwise in order.

By this REMAND, the Board intimates no opinion, either legal
or factual, as to any final determination warranted in this
case.  The appellant need take no action until otherwise
notified, but he may furnish additional evidence and argument
while the case is in remand status.  Quarles v. Derwinski, 3
Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109
(1995).  The purpose of this REMAND is to obtain clarifying
information and to provide the veteran with due process.

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
Veterans Appeals 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. 1998) (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.

	C.W. Symanski
	Member, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JOHN E ORMOND, JR

text:
Citation Nr: 9907000
Decision Date: 03/16/99    Archive Date: 03/24/99

DOCKET NO.  98-12 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUE

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

ATTORNEY FOR THE BOARD

D. M. Fogarty, Associate Counsel

INTRODUCTION

The veteran served during World War II.  The veteran died in
December 1996; the appellant is his surviving spouse. The
Board notes that by way of a letter dated April 17, 1997, the
Regional Office (RO) informed the appellant that she had no
legal entitlement to non-service-connected death pension
benefits.  The appellant's

substantive appeal dated in July 1998 refers to both pension
benefits and cause of death.  By way of a letter dated in
January 1999, the RO informed the appellant that they were
unable to accept her July 1998 notice of disagreement as to
the denial of her claim for non-service-connected pension
benefits because it was untimely.  The appellant responded by
way of a letter dated January 15, 1999, in which she asked,
in effect, for additional explanation.

FINDINGS OF FACT

1.  The veteran died in December 1996; the immediate cause of
death was "PTB III" and pneumonia.  Hypertensive
cardiovascular disease was listed as an antecedent cause of
death.

2.  At the time of his death the veteran was service
connected for residuals of gunshot wounds incurred during
World War II.  The veteran had no other service connected
disabilities.

3. There is no competent evidence of record that the
veteran's PTB was manifested during service or within three
years following separation from service.

4.  There is no competent evidence of record that the
veteran's hypertension was manifested during service or
within one year following separation from service.

5.  Competent evidence of a nexus between an incident of
service and the veteran's cause of death has not been
presented.

6.  Competent evidence that the veteran's service-connected
disabilities caused or substantially or materially
contributed to the cause of his death has not been presented.

CONCLUSION OF LAW

The claim for service connection for the cause of the
veteran's death is not well grounded.  38 U.S.C.A. � 5107
(1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's service medical records are silent for
treatment, complaints, or diagnoses related to the lungs and
cardiovascular system.  A record of physical examination
dated in April 1946 reflects the lungs and cardiovascular
systems were noted as "normal."  A record of physical
examination dated in February 1947 reflects the lungs and
cardiovascular systems were noted as "normal."

The veteran filed a claim dated in May 1946 seeking
entitlement to service connection for residuals of a gunshot
wound.  In a March 1950 rating decision, the RO granted a 60
percent disability evaluation for "ankylosis, unfavorable
all digits rt (major) hand resid gsw forearm with retained
foreign bodies, fractured radius and ulna and paralysis
partial median and ulnar nerves and limited wrist motion."
In an October 1960 rating decision, the RO increased the
veteran's combined disability evaluation to 70 percent.  In a
March 1974 rating decision, the RO increased the veteran's
combined disability evaluation to 80 percent.

A VA radiographic report dated in September 1960 reflects an
essentially normal chest.

The veteran died in December 1996.  The death certificate
reflects the immediate cause of death as "PTB III" and
pneumonia.  Hypertensive cardiovascular disease was listed as
the antecedent cause of death.

Private hospital records dated in December 1996 contain a
radiology record reflecting impressions of cardiomegaly with
pulmonary congestion; intercurrent pneumonia, right lung
field and left lower lung field, considered; pleural
effusion, bilateral; right mid to upper lung field homogenous
rounded density may be a pseudotumor or a mass lesion;
atherosclerosis, aorta; and thoracic hypertrophic
degenerative changes.  A subsequent radiology report showed
"moderate clearing of the infiltrates at the right mid to
base including the homogenous density at the right mid lung
field."  It was also noted that costophrenic "sulci"
remained blunted.

A letter dated in June 1997 from Dr. H. reflects the veteran
was admitted to the hospital in December 1996 for cough and
difficulty breathing and he was treated as a case of
pneumonia, PTB hypertensive cardiovascular disease.  It was
noted that chronic obstructive lung disease could not be
ruled out.

Analysis

Basic entitlement to disability compensation may be
established for a disability resulting from personal injury
suffered or disease contracted in the line of duty or for
aggravation of a preexisting injury suffered or disease
contracted in the line of duty.  38 U.S.C.A. �  1110 (West
1991).  Service connection connotes many factors but
basically means that the facts, shown by evidence, establish
that a particular injury or disease resulting in disability
was incurred coincident with service in the Armed Forces, or
if preexisting such service, was aggravated therein.
38 C.F.R. � 3.303(a) (1998).  Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. �  3.303(d)(1998).

To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to the cause of
death.  For a service-connected disability to be the cause of
death, it must singly, or with some other condition be the
immediate or underlying cause of death, or be etiologically
related.  38 U.S.C.A. � 1310 (West 1991); 38 C.F.R. � 3.312
(1998).  To be a contributory cause of death, it must be
shown that the service-connected disability contributed
substantially or materially to cause death, that it combined
to cause death, or that it aided or lent assistance to the
production of death.  It is not sufficient to show that it
casually shared in producing death, but rather is must be
shown that there was a causal connection. 38 C.F.R. � 3.312.

Service connection may be granted for active tuberculosis if
manifested to a compensable degree within three years after
the veteran's separation from service.  38 U.S.C.A. �� 1101,
1112, 1113, 1137 (West 1991); 38 C.F.R. �� 3.307, 3.309
(1998).  Service connection may be granted for hypertension
if manifested to a compensable degree within one year after
the veteran's separation from service.
38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R.
�� 3.307, 3.309 (1998).

The threshold question that must be resolved with regard to
each claim is whether the appellant has presented evidence
that the claim is well grounded; that is, that the claim is
plausible.  If he has not, his appeal fails as to that claim,
and VA is under no duty to assist him in any further
development of that claim.
38 U.S.C.A. �  5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990).

Case law provides that, although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence.  A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible.  Dixon v. Derwinski, 3 Vet. App. 261,
262 (1992); Tirpak v. Derwinski,
2 Vet. App. 609, 611 (1992).  In order for a claim to be well
grounded, there must be competent evidence of current
disability (a medical diagnosis); of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence); and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v.  Brown, 7 Vet. App. 498 (1995).

Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim.  Lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded under
38 U.S.C.A. �  5107(a); if no cognizable evidence is
submitted to support a claim, the claim cannot be well
grounded.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

The Board notes that the Court has held that there is a duty
to assist a veteran in the completion of his application for
benefits under 38 U.S.C.A.�  5103(a)
(West 1991), depending on the particular facts in each case.
Beausoleil v. Brown,
8 Vet. App. 459 (1996);  Robinette v. Brown, 8 Vet. App. 69
(1995).  The facts and circumstances of this case are such
that no further action is warranted.

In regards to direct service connection for cause of death,
there is no assertion by the appellant that the veteran
suffered from hypertension or active tuberculosis during
service or to a compensable degree within one-year or three-
years, respectively, after separation from service.
Additionally there is no competent medical evidence to
support such contentions as the evidence of record contains
no complaints, treatment, or diagnoses relevant to
hypertension or tuberculosis until December 1996.

Additionally, the claims file is devoid of any competent
evidence establishing a nexus between the cause of the
veteran's death and any incident of service.  The claims file
is further devoid of any competent evidence suggesting that
the veteran's service-connected disabilities caused or
substantially or materially contributed to the cause of his
death.  The appellant's claim is supported solely by her own
contentions.  The record does not reveal that the appellant
possesses any medical expertise and she has not claimed such
expertise.  Unfortunately, the appellant's assertions involve
questions of medical causation or diagnosis, and thus cannot
constitute evidence to render the claim well grounded,
because lay witnesses are not competent to offer such medical
opinions.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Thus, in the absence of any competent medical evidence
linking the cause of the veteran's death to an incident of
service or suggesting that the veteran's service-connected
disabilities caused or substantially or materially
contributed to the cause of his death, the claim is not well
grounded and must be denied.

ORDER

Service connection for the cause of the veteran's death is
denied.

	John E. Ormond, Jr.
	Member, Board of Veterans' Appeals


text: This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication

text: Initially, the Board notes that the veteran's claim is found to be well-grounded under 38 U.S.C.A. § 5107(a) (West 1991). That is, based upon a diagnosis of PTSD as reported in a May 1996 VA progress note, the veteran has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). [is remanded]

text:
Citation Nr: 9908000
Decision Date: 03/24/99    Archive Date: 03/31/99

DOCKET NO.  98-17 563	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. L. Douglas, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1942 to
November 1945.  The veteran was a prisoner of war (POW) from
April 20, 1945, to April 29, 1945.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1996 rating decision by the
Houston, Texas, Regional Office (RO) of the Department of
Veterans Affairs (VA).

In February 1999 the veteran testified at a video conference
hearing before the undersigned Board Member.  A copy of the
transcript of that hearing is of record.

REMAND

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court") for
additional development or other appropriate action must be
handled in an expeditious manner.  See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, � 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. � 5101 (West Supp. 1998)
(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.

Initially, the Board notes that the veteran's claim is found
to be well-grounded under 38 U.S.C.A. � 5107(a) (West 1991).
That is, based upon a diagnosis of PTSD as reported in a May
1996 VA progress note, the veteran has presented a claim
which is plausible.  Murphy v. Derwinski, 1 Vet. App. 78
(1990).

The Board notes that the Court has provided detailed guidance
for the development of claims for service connection for PTSD
once the veteran has satisfied the initial burden of
establishing a well-grounded claim.  Zarycki v. Brown, 6 Vet.
App. 91 (1993).

In Zarycki, the Court set forth the framework for
establishing the presence of a recognizable stressor, which
is the essential prerequisite to support the diagnosis of
PTSD.  The Court analysis divides into two major components:
The first component involves the evidence required to
demonstrate the existence of an alleged stressful event; the
second involves a determination as to whether the stressful
event is of the quality required to support the diagnosis of
PTSD.

In this case, the Board notes the veteran was confined as a
POW, but for a period less than 30 days.  Therefore, the
presumption of service connection for certain POW related
disorders, including psychoses, is not warranted.  See
38 C.F.R. � 3.309(c) (1998).  The Board notes, however, that
qualifying POW experience will be accepted as conclusive
evidence of an inservice stressor for entitlement to service
connection for PTSD in the absence of contrary evidence.  See
38 C.F.R. � 3.304(f) (1998).

The record reflects that the May 1996 VA progress note
provided a diagnosis of PTSD; however, the report is not
clear as to the specific stressors upon which the diagnosis
was based.  An April 1998 VA psychiatric examiner noted the
veteran's examination had been difficult because the
interview required the aid of an interpreter.  Although the
examiner stated the diagnostic criteria for PTSD had not been
fully demonstrated, it was noted that because of language
difficulties no firm opinion could be provided as to a causal
relationship between the veteran's present psychiatric
disorders and his military experiences.

The April 1998 VA examiner also commented that the veteran
had provided a limited amount of information.  The Board
notes that additional information as to the veteran's POW
experiences were provided during the February 1999 video
conference hearing.  Therefore, the Board finds additional
development is required for an adequate determination of this
appeal.

VA has a duty to assist the veteran in the development of
facts pertinent to a well-grounded claim, which includes
obtaining an adequate VA examination.  38 U.S.C.A. � 5107(a);
see also Littke v. Derwinski, 1 Vet. App. 90 (1990).  The
fulfillment of the statutory duty to assist includes
providing additional VA examinations by a specialist when
recommended, and conducting a thorough and contemporaneous
medical examination, which takes into account the records of
prior medical treatment, so that the disability evaluation
will be a fully informed one.  See Hyder v. Derwinski, 1 Vet.
App. 221 (1991);  Green v. Derwinski, 1 Vet. App. 121, 124
(1991).

Accordingly, the case is remanded for the following:

1.  The veteran should be allowed to
submit additional information in support
of his claim, including any additional
recollections of stressful events during
active service.  All pertinent evidence
received should be associated with the
claims file.

2.  The RO should obtain copies of all VA
outpatient treatment and hospital records
relevant to the veteran's claim.  All
pertinent evidence received should be
associated with the claims file.

3.  The RO should then review the file
and prepare a summary of all of the
claimed stressors reported in the
veteran's statements and examination
reports.

The RO should then make a specific
determination as to verification of
stressors, based on the complete record
and all applicable law, including
38 C.F.R. � 3.304(f).  In reaching this
determination, the RO should address any
credibility questions raised by the
record.

4.  The veteran should be afforded a VA
psychiatric examination, with appropriate
consideration of his limited English
language skills.  The examiner should be
informed as to which stressors have been
verified for the purpose of determining
whether exposure to a stressor in service
has resulted in current psychiatric
symptoms.  The examiner should indicate
whether the diagnostic criteria to
support a diagnosis of PTSD have been
satisfied.  The examination should
include all appropriate tests and
evaluations, including psychological
testing with PTSD subscales.  The
examiner should utilize the Fourth
edition of the American Psychiatric
Association's Diagnostic and Statistical
Manual for Mental Disorders (DSM-IV), in
arriving at diagnoses, enumerating the
specific diagnostic criteria satisfied
and the specific findings meeting the
criteria for any disorder found.  If PTSD
is diagnosed, the stressors supporting
the diagnosis must be identified, as must
be the evidence documenting the
stressors.  If the examiner finds that
PTSD is related to stressors other than
those claimed to have occurred in
service, it should be so noted and
explained.  If PTSD is diagnosed, the
examiner should specify what symptoms are
related to PTSD as opposed to any other
psychiatric disorders.

The claims folder and a separate copy of
this remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination.  Any opinions expressed
by the examiner must be accompanied by a
complete rationale.

5.  Thereafter, the RO should carefully
review the claims file to ensure that all
of the foregoing requested development
has been completed.  In particular, the
RO should review the requested
examination report and required opinions
to ensure that they are responsive to and
in complete compliance with the
directives of this remand and if they are
not, the RO should implement corrective
procedures.  Stegall v. West, 11 Vet.
App. 268 (1998).

6.  After undertaking any development
deemed essential in addition to that
specified above, the RO should review the
record and re-adjudicate the issue on
appeal.

If any benefit sought, for which a timely notice of
disagreement was filed, is not granted to the veteran's
satisfaction, the RO should issue a supplemental statement of
the case.  The requisite period of time for a response should
be afforded.  Thereafter, the case should be returned to the
Board for final appellate review, if otherwise in order.  By
this remand, the Board intimates no opinion as to any final
outcome warranted.  No action is required of the veteran
until notified by the RO.

	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board is appealable to the Court.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (1998).

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