judge_norm: STEPHEN L WILKINS

disposition: granted

text:
Citation NR: 9612000
Decision Date: 04/30/96		Archive Date: 05/09/96
DOCKET NO.  93-14 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUES

1.  Entitlement to an increased rating for the
service-connected left knee disability, currently evaluated
as 20 percent disabling.

2.  Entitlement to an increased rating for the
service-connected right knee disability, currently evaluated
as 30 percent disabling.

3.  Entitlement to service connection for the residuals of a
bilateral inguinal hernia repair.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

Theresa M. Catino, Associate Counsel

INTRODUCTION

The veteran served on active military duty from January 1943
to November 1945.

In a September 1995 statement, the veteran�s representative
raised the issue of entitlement to a total rating based on
individual unemployability.  This matter has not been
developed for appellate review and is, therefore, referred to
the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, the service-connected
disabilities are more severely disabling than currently
evaluated.  In particular, he maintains that he experiences
increased subluxation, �locking,� and pain in his knee joints
and severe limitation of motion and some swelling in these
joints.  He has also explained that, although authorized for
new knee braces, he has not picked them up yet and that he
continues to wear old knee braces as needed but not on a
constant basis.  He describes having difficulties in both of
his knees, with his right knee being worse than his left
knee.  In addition, the veteran�s representative has
requested consideration of 38 C.F.R. �� 3.321, 4.40, and 4.59
(1995).

In addition, the veteran asserts that his bilateral inguinal
hernia were secondary to his service-connected bilateral knee
disabilities.  In particular, he has claimed that his
inability to flex his knees while handling substantive weight
caused his bilateral inguinal hernia.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), 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 the preponderance of the evidence warrants
the assignment of a 30 percent rating, but no higher, for the
service-connected left knee disability.  The Board also
decides that the preponderance of the evidence is against the
claim for an increased rating for the service-connected right
knee disability.  It is also the decision of the Board that
the claim of service connection for bilateral inguinal hernia
repair is not well-grounded.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's increased rating claims has been
obtained insofar as possible.

2.  The veteran�s service-connected left knee disability,
which is manifested by tenderness over the medial joint line,
limitation of motion, and moderately severe lateral joint
space narrowing, is probably productive of severe impairment.

3.  The symptomatology associated with the veteran�s
service-connected right knee disability, is not shown to be
productive of ankylosis or extension limited to more than 20
degrees.

4.  No competent medical evidence has been received to show
that the veteran�s bilateral inguinal hernia is due to
disease or injury in his active military service or his
currently service-connected disabilities.

CONCLUSIONS OF LAW

1.  An increased rating of 30 percent, but no higher, for the
service-connected left knee disability is warranted.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 3.321,
4.40, 4.59, 4.71a, including Diagnostic Code 5257 (1995).

2.  An increased rating higher than 30 percent for the
service-connected right knee disability is not warranted.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. �� 3.321,
4.40, 4.59, 4.71a, including Diagnostic Codes 5256, 5257,
5261 (1995).

3.  The claim for service connection for the residuals of a
bilateral inguinal hernia repair is not well-grounded.
38 U.S.C.A. � 5107 (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Bilateral Knees

The veteran's increased rating claims are well-grounded
within the meaning of 38 U.S.C.A. � 5107(a) (West 1991).
That is, the Board finds that the veteran has presented
claims which are plausible.  The Board is also satisfied that
all relevant facts have been properly developed.  As
sufficient data exist to address the merits of the veteran�s
claims, the Board concludes that the VA has adequately
fulfilled its statutory duty to assist the veteran in the
development of his claims.  No further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. � 5107(a).  Murphy v. Derwinski,
1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90
(1990).

Disability evaluations are administered under the Schedule
for Rating Disabilities which is found in 38 C.F.R. Part 4
(1995) and is designed to compensate a veteran for the
average impairment in earning capacity.  38 U.S.C.A. � 1155
(West 1991).  Separate diagnostic codes identify the various
disabilities.  Id.  Although the evaluation of a
service-connected disability requires a review of the
veteran�s medical history with regard to that disorder, the
primary concern in a claim for an increased evaluation for a
service-connected disability is the present level of
disability.  The United States Court of Veterans Appeals
(Court) has held that, where entitlement to compensation has
already been established, and an increase in the disability
rating is at issue, the present level of disability is of
primary concern.  Although a rating specialist is directed to
review the recorded history of a disability in order to make
a more accurate evaluation, the regulations do not give past
medical reports precedence over current findings.  Francisco
v. Brown, 7 Vet.App. 55, 58 (1994).

With these regulations and this Court decision in mind, the
Board will address the issue of the evaluation of the present
level of disability resulting from the veteran�s
service-connected bilateral knee disabilities.  The veteran
is evaluated for his knee disorders under Diagnostic Code
5257, which rates disability resulting from knee impairment,
including recurrent subluxation and lateral instability.
According to this Code, evidence of slight impairment will
result in the assignment of a 10 percent rating.  Evidence of
moderate impairment warrants the assignment of a 20 percent
evaluation.  Evidence of severe impairment will result in the
assignment of a 30 percent rating.  38 C.F.R. � 4.71a,
Code 5257 (1995).

According to the applicable diagnostic codes for limitation
of flexion and limitation of extension of the knee, evidence
of limitation of flexion to 60 degrees warrants a
noncompensable rating.  Limitation of flexion to 45 degrees
will result in the assignment of a 10 percent evaluation.
Limitation of flexion to 30 degrees warrants a 20 percent
rating, and limitation of flexion to 15 degrees will result
in the assignment of a 30 percent evaluation.  38 C.F.R.
� 4.71a, Code 5260 (1995).  Furthermore, evidence of
limitation of extension to 5 degrees will result in the
assignment of a noncompensable rating.  Limitation of
extension to 10 degrees warrants a 10 percent evaluation.
Limitation of extension to 15 degrees will result in the
assignment of a 20 percent rating.  Limitation of extension
to 20 degrees warrants a 30 percent evaluation.  Limitation
of extension to 30 degrees will result in the assignment of a
40 percent rating, and limitation of extension to 45 degrees
warrants a 50 percent rating.  38 C.F.R. � 4.71a, Code 5261
(1995).

I.

A careful review of the medical records received during the
current appeal demonstrates that the veteran occasionally
sought treatment for his knee problems.  X-rays taken of his
knees in May 1990 showed very minimal arthritic changes and
some synovial calcification on the left as well as arthritic
changes with narrowing of the lateral joint interspace,
osteophyte formation, and some sclerosis on the right.  A
history of trauma to the right knee was suspected.  A July
1990 evaluation demonstrated reduced patella-reflex.  A
September 1991 VA outpatient treatment record reiterated the
degenerative joint disease of the veteran�s knees and
provided information that there were no acute exacerbation�s.

When the veteran was hospitalized in March 1992 for a hernia
operation, he complained of knee pain.  He was evaluated by
Orthopedic Surgery, and degenerative joint disease of both
knees was shown.  Control of this disorder with non-steroidal
medication and postponement of consideration of a prosthesis
�until later on� was recommended.

In December 1992, the veteran underwent a compensation or
pension examination.  Evaluation of the right knee
demonstrated enlargement of the joint with a lateral scar,
marked crepitation (grinding) of the patella-femoral
articulation and in the medial and lateral compartments of
the knee joint, limitation of extension of 10 degrees,
limitation of flexion of 20 degrees, stability, and some pain
on lateral stress.  Evaluation of the left knee showed a
normal appearance, stability, complete range of motion,
modest joint crepitus, and a slight �clunk� upon twist.  The
examining physician expressed his opinion that the veteran�s
knees were significantly impaired due to the degenerative
changes and that his right knee was more severe than his left
knee.

X-ray studies taken at that time showed degenerative joint
disease of both knees, which was more exaggerated on the
right.  The radiologist reviewing the X-rays described severe
lateral joint space narrowing on the right and moderately
severe medial joint space narrowing on the left and noted
that changes appeared to have advanced somewhat since the
prior study of 1990.

VA outpatient treatment records indicate that in 1993 the
veteran was taking medication for his arthritic knees.  At a
July 1993 VA outpatient treatment session, examination of the
right knee showed pain and grating with flexion and extension
of the joint, ranges of motion from 10 degrees to
110 degrees, stable ligaments, pain with palpation of the
lateral joint line, and patella-femoral crepitus.  Evaluation
of the left knee demonstrated range of motion from zero
degrees to 120 degrees, moderate discomfort, no swelling, and
stable ligaments.  The assessment of degenerative arthritis
of both knees, worse on the right than the left, was given.
The veteran preferred continued anti-inflammatory medication
rather than surgery.  The veteran was instructed to return to
the clinic on an as-needed basis and to continue taking his
medication.

Thereafter, in June 1994, the veteran underwent a VA
orthopedic examination of his knees.  Evaluation of the right
knee showed 10 to 12 degrees of valgus, 12 degrees limitation
of extension, 110 degrees of flexion, audible and palpable
crepitus over the lateral tibial femoral compartment
aggravated with any rotation, lateral collateral ligament
instability secondary to considerable narrowing of the
lateral joint space, good anterior and posterior stability,
tenderness over the lateral joint line, good patella-femoral
tracking, and no particular crepitus over the patella-femoral
joint.  Examination of the left knee demonstrated zero to
130 degrees range of motion, stable medial and lateral
collateral ligaments, stable anterior and posterior cruciate,
tenderness over the medial joint line, no crepitus, and
neutral varus.

X-ray studies showed the knees with lateral tibial femoral
arthritis joint space obliteration , bone on bone,
hypertrophic spurs, and sclerotic subchondral bony margin on
the right as well as medial tibial femoral arthritis with
medial tibial femoral joint space narrowing to two
millimeters on the left.  In addition, the X-rays
demonstrated mild degenerative changes, with more
hypertrophic changes around the fibular margins on the right.
The diagnoses of traumatic arthritis of the tibial femoral
joint with instability and obliteration of the joint space,
patella-femoral arthritis, ligamentous instability, and
medial tibial femoral osteoarthritis and lesser
patella-femoral arthritis on the left.  Recommending surgical
intervention on the right knee, the examiner expressed his
opinion that the veteran had �such a

limitation of his activity levels and such a compromise in
the quality and his style of life from his right knee due to
pain and its resultant restriction together with the crepitus
and instability [that] he [was] an ideal candidate or
certainly a candidate for total knee replacement on the
right.�

II.

As the Board has previously discussed, the veteran is
currently evaluated as 20 percent disabled for his
service-connected left knee disability.  The medical evidence
indicates that an increased rating of 30 percent is warranted
for this service-connected disability.  According to these
medical reports, the veteran takes anti-inflammatory
medication for his left knee.  Furthermore, this
service-connected disability is manifested by tenderness over
the medial joint line, limitation of motion, and moderately
severe lateral joint space narrowing.  The Board if of the
opinion that this symptomatology reflects severe impairment
of the veteran�s left knee.  Consequently, a 30 percent
evaluation should be assigned.  38 C.F.R. � 4.71a, Plate II
and Code 5257 (1995).

With regard to the veteran�s service-connected right knee
disability, the Board notes that he is currently receiving
the highest possible rating (30 percent) under Code 5257.
Furthermore, the veteran cannot receive a higher disability
evaluation based on limitation of motion.  The applicable
diagnostic code require evidence of limitation of extension
to 30 degrees to warrant the assignment of a 40 percent
rating.  38 C.F.R. � 4.71a, Code 5261 (1995).  However, the
recent examinations noted that extension was limited to no
more than 12 degrees.

In addition, the Board notes that several physicians who have
examined the veteran have recommended surgical intervention,
particularly with regard to his right knee.  However, no
evidence has been received that the veteran has elected, and
actually undergone, any surgery.  Consequently, a rating
greater than 30 percent for his service-connected right knee
disability cannot be assigned based on the applicable
diagnostic code for a knee replacement.  See 38 C.F.R.
� 4.71a, Code 5055 (1995).

However, the Board must also consider the provisions of
38 C.F.R. �� 4.40 and 4.59.  38 C.F.R. �� 4.40 requires that
the evaluation of a disability of the musculoskeletal system
must take into account the functional loss due to pain of the
damaged part of the system.  The intent of the schedule is to
recognize painful motion with joint pathology as productive
of disability.  Functional loss due to pain must be supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion.  38 C.F.R. � 4.40
(1995).  See also 38 C.F.R. � 4.59 (1995) (painful motion
resulting from arthritic joints).  However, in this case, the
Board finds that he is not shown to have a functional loss
equivalent to ankylosis or a limitation of extension greater
than 20 degrees.

Moreover, in reaching a determination in this case, the Board
must consider other provisions of 38 C.F.R. Parts 3 and 4 as
required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
The assignment of a higher rating on an extraschedular
evaluation has also been considered in this case.

II.  Bilateral Inguinal Hernia Repair

The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded.  See 38 U.S.C.A. � 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).  A well
grounded claim is a plausible claim, one that appears to be
meritorious.  See Murphy, 1 Vet.App. at 81.  An allegation
that a disorder is service connected is not sufficient; the
veteran must submit evidence in support of the claim that
would �justify a belief by a fair and impartial individual
that the claim is plausible.�  See 38 U.S.C.A. � 5107(a);
Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim.  Grottveit v. Brown,  Vet.App. 91,
92-93 (1993).  In order for a claim to be well grounded,
there must be proof of present disability.  Brammer v.
Derwinski, 3 Vet.App. 223 (1992).  See also Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992) (requiring, for a
well-grounded claim, competent evidence that a veteran
currently has the claimed disability).  In addition, there
must also be evidence of incurrence or aggravation of

a disease or injury in service.  See Caluza v. Brown,
7 Vet.App. 498 (1995).  The veteran must also submit medical
evidence of a nexus between the in-service disease or injury
and the current disability.  Id.

Where the issue is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including the veteran�s solitary testimony, may
constitute sufficient evidence to establish a well grounded
claim; however, if the determinative issue is one of medical
etiology or a medical diagnosis, competent medical evidence
must be submitted to make the claim well-grounded.  See
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).  A lay person
is not competent to make a medical diagnosis or to relate a
medical disorder to a specific cause.  See Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992).

According to the post-service medical records received in the
present case, a November 1978 VA examination demonstrated
bilateral inguinal hernia, greater on the right than the
left, which were easily reducible.  In 1979, the veteran
underwent repair of his right inguinal hernia.  A VA
outpatient treatment record dated in September 1981 confirmed
a possible left inguinal hernia.  The veteran�s left inguinal
hernia was repaired in 1990 and again in 1992.

Significantly, none of the post-service medical reports
reflecting examination of, and treatment for, the veteran�s
bilateral inguinal hernia demonstrated any evidence of an
association between these disorders and his active military
service.  The Board acknowledges the veteran�s admission in
the notice of disagreement, which was received in July 1993,
that his bilateral inguinal hernia repairs were not directly
related to his service.  In fact, throughout the current
appeal, the veteran has maintained that the need for his
bilateral inguinal hernia repairs was caused by his
service-connected bilateral knee disabilities.  Specifically,
he has claimed that his inability to flex his knees while
handling substantive weight caused his bilateral inguinal
hernia.  Despite these contentions, however, the fact remains
that none of the post-service medical records demonstrated
any evidence of a nexus between the veteran�s bilateral
inguinal hernia repairs and any of his service-connected
disabilities.

The veteran�s assertions cannot be considered competent
evidence of a nexus between his bilateral inguinal hernia
repairs and his service-connected bilateral knee
disabilities.  See Grottveit v. Brown, 5 Vet.App. 91, 93
(1993) and Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992)
(lay people are not competent to relate a medical disorder to
a specific cause).  Significantly, the claims folder contains
no competent evidence of a causal relationship between the
veteran�s bilateral inguinal hernia and his active military
service or his service-connected disabilities.  Such evidence
is required for a finding of a well-grounded claim.  See
Caluza v. Brown, 7 Vet.App. 498 (1995).

During the current appeal, the veteran was essentially
advised of what would be necessary to support his claims.
For example, in the June 1993 notice of the rating action
dated in the same month and in the statement of the case
which was furnished to the veteran in May 1995, the RO
informed him of the need for evidence of a nexus between his
bilateral inguinal hernia repairs and his active military
service or between his bilateral inguinal hernia repairs and
any of his service-connected disabilities.  Consequently, the
Board concludes that the veteran was informed of the evidence
necessary to support his claim of service connection.  See
Robinette v. Brown, 8 Vet.App. 69 (1995).

ORDER

A rating of 30 percent, but no higher, for the
service-connected left knee disability is granted, subject to
the controlling regulations governing the payment of monetary
awards.

An increased rating of higher than 30 percent for the
service-connected right knee disability is denied.

Service connection for the residuals of a bilateral inguinal
hernia repair is denied.

	STEPHEN L. WILKINS
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), 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
(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: MARK J SWIATEK

disposition: denied

text:
Citation NR: 9614000
Decision Date: 05/15/96		Archive Date: 05/28/96
DOCKET NO.  93-04 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah

THE ISSUES

Entitlement to an increased rating for bilateral hearing
loss, evaluated as 10 percent disabling from February 21,
1991, to December 31, 1995.

Entitlement to an increased (compensable) disability
evaluation for bilateral hearing loss, effective January 1,
1996.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARINGS ON APPEAL

The appellant and his spouse

ATTORNEY FOR THE BOARD

R. M. Yonemoto, Counsel

INTRODUCTION

The veteran had active service from October 1965 to October
1967.

In a rating decision of October 1991, the regional office
(RO) increased the disability rating assigned for the
veteran's service-connected bilateral hearing loss from a
noncompensable level to 10 percent, effective February 21,
1991, the date of receipt of his claim for an increased
rating.  Dissatisfied with the rating assigned, the veteran
appealed.  In October 1995, the Board of Veterans' Appeals
(Board) remanded the case for additional development.  In a
rating decision of October 1995, the RO implemented an
earlier proposed reduction in the veteran's disability rating
for the bilateral hearing loss from 10 percent to a
noncompensable level, effective January 1, 1996.  The veteran
also disagreed with that decision.  Both issues as set forth
on the previous page are properly before the Board for
appellate consideration at this time.

It does not appear that the RO has considered the issue of
entitlement to an extraschedular rating under 38 C.F.R
� 3.321(b)(1) (1995) for the disability at issue on appeal.
Under Fisher v. Principi, 4 Vet.App. 57, 60 (1993), the
question of extraschedular consideration is a separate issue
from the issue of the appropriate schedular rating to be
assigned.  Further, under Floyd v. Brown, No. 92-970 (U.S.
Vet. App. Apr. 17, 1996), although the Board of Veterans'
Appeals (Board) may be obliged to raise the issue of
potential extraschedular consideration, based upon a liberal
reading of the documents and oral testimony of record, the
Board cannot make that determination in the first instance.
Accordingly, the question of potential extraschedular
consideration for the service-connected bilateral hearing
loss is referred to the attention of the RO for appropriate
action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that he has severe
bilateral hearing loss which warrants entitlement to at least
a 30 percent disability rating according to interpretations
of hearing impairment made by his personal physicians.  He
asserts that he is required to have hearing aids, but they
are not effective because of noise interference.  Attention
is invited to the provisions of 38 C.F.R. � 4.7.

DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104 (West
1991 & Supp. 1995), the Board has reviewed and considered all
of the evidence and material of record in the veteran's
claims file.  Based on a review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claims for an increased rating for
bilateral hearing loss from February 21, 1991, to December
31, 1995, and for a compensable disability evaluation for the
hearing loss effective January 1, 1996.

FINDINGS OF FACT

1.  The veteran essentially had level II hearing in the right
ear and level VI hearing in the left ear from February 21,
1991, to December 31, 1995.

2.  The veteran currently has level II hearing in the right
ear and no less than IV hearing in the left ear.

CONCLUSIONS OF LAW

1.  The schedular requirements for disability rating in
excess of 10 percent for bilateral hearing loss from February
21, 1991, to December 31, 1995, have not been met.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R.
�� 4.85,4.87, and Part 4, Code 6101 (1995).

2.  The schedular requirements for an increased (compensable)
disability rating for bilateral hearing loss, effective
January 1, 1996, have not been met.  38 U.S.C.A. �� 1155,
5107 (West 1991); 38 C.F.R. �� 4.85, 4.87, and Part 4, Code
6100 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board finds that the veteran's claims are
"well grounded" within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991).  That is, the Board finds that he has presented
claims which are plausible.  Further, after reviewing the
record, the Board is satisfied that all relevant facts have
been fully developed and that the case is properly in
appellate status.

The veteran's service-connected bilateral hearing loss was
evaluated under the applicable codes of the Schedule for
Rating Disabilities.  38 C.F.R. Part 4 (1995).  Disability
evaluations are determined by the application of the schedule
of ratings which is based on average impairment of earning
capacity.  38 U.S.C.A. � 1155 (West 1991).  Evaluations of
bilateral defective hearing range from noncompensable to 100
percent based on organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests together with the average hearing threshold levels as
measured by pure tone audiometry tests in frequencies
1,000, 2,000, 3,000 and 4,000 cycles per second.  To evaluate
the degree of disability from bilateral service-connected
defective hearing, the revised rating schedule establishes 11
auditory acuity levels, designated from level I for
essentially normal hearing acuity through level XI for
profound deafness.  38 C.F.R. � 4.85 and Part 4, Codes 6100
to 6110 (1995).  The veteran's hearing loss is evaluated by a
mechanical application of the rating schedule to the
numerical designations assigned after audiometry evaluations
are rendered.  Lendenmann v. Principi, 3 Vet.App. 345, 349
(1992).

The records in the veteran's claims folder include his
service medical records and Department of Veterans Affairs
(VA) outpatient treatment reports, private and VA
audiological evaluation reports, and statements by private
audiologists and physicians.

An audiometry report of June 1991 from Utah Valley Hospital
Speech and Hearing Center shows threshold levels of 20, 50,
80 and 105 decibels in the right ear and 20, 40, 80 and 100
decibels in the left ear at 1,000, 2,000, 3,000 and 4,000
hertz, respectively.

In September 1991, the veteran was accorded VA audiometry
evaluations, including pure tone air and bone conduction
tests as well as speech audiometry.  Pure tone air conduction
test and speech recognition study provided the best estimate
of the veteran's organic hearing.  The air conduction test
disclosed threshold levels of 15, 40, 75 and 100 decibels in
the right ear and 15, 40, 75 and 95 decibels in the left ear
at 1,000, 2,000, 3,000 and 4,000 hertz, respectively.  The
average threshold level for those frequencies was 58 decibels
in the right ear and 56 decibels in the left.  Speech
recognition ability was 96 percent correct in the right ear
and 66 percent correct in the left ear.  The veteran reported
at that time that he had progressive hearing loss since 1967,
and that he was exposed to noise from artillery in the
military and from heavy equipment in his civilian job.  The
examiner commented that the audiometry test results showed
mild-to-profound sensorineural hearing loss, bilaterally, and
that speech recognition was good in the right ear and poor in
the left.  The examiner concluded that the best estimate of
the veteran's organic hearing sensitivity was hearing level
II on the right and hearing level V on the left ear.

On a VA ear examination in September 1991, the veteran
complained of decreased hearing in both ears.  The
assessments included sensorineural hearing loss most likely
secondary with a bilateral high frequency component, most
likely related to noise exposure in the military and civilian
life as well as some decreased discrimination in the left ear
but the discrimination ranged from 88 percent to 95 percent
for normal speech.

In a letter of November 1991, R. J. Petersen, M.D., reported
that the veteran's hearing loss was about 30 percent and his
discrimination score was 76 percent and 80 percent in the
left ear and right ear, respectively.  The report referred to
the June 1991 evaluation.

An audiometry evaluation report, dated in November 1991, from
Salt Lake Clinic, reveals threshold levels of 35, 55, 80 and
110 in the right ear and 30, 45, 80 and 95 decibels in the
left ear at 1,000, 2,000, 3,000 and 4,000 hertz,
respectively.  The report further discloses average air
conduction threshold of "38 decibels" in the right ear and
"33 decibels" in the left ear.  Speech reception threshold
was 72 percent in each ear.

In a letter of April 1992, R. J. Ord, M.D., from Salt Lake
Clinic related that after comparing pervious service
audiograms he found significant increase in the hearing
impairment of the veteran's ears, that the average threshold
level was 49 decibels in the right ear and 54 decibels in the
left ear at 500, 1,000, 2,000 and 3,000 hertz, and that the
veteran had a 37 percent hearing impairment in the right ear
and a 43 percent hearing impairment in the left ear.  He
referred to the November 1991 examination as well as earlier
audiograms.

In April 1992, the veteran together with his wife and his
representative appeared at a personal hearing on appeal
conducted in the RO.  On that occasion, the veteran gave a
history of his hearing loss.  His wife testified that the
doctors who examined the veteran had concluded that the
veteran had between 30 and 35 percent loss of hearing.

The veteran was accorded a VA audiometry evaluation in
December 1994.  On that occasion, pure tone examination
revealed threshold levels of 25, 45, 80 and 105 decibels in
the right and 20, 40, 80 and 90 decibels in the left ear at
1,000, 2,000, 3,000 and 4,000 hertz, respectively.  The
average threshold level was 63 decibels in the right ear and
57 decibels in the left ear.  The speech recognition scores
(CNC) were 94 percent correct in the right ear and 82 percent
correct in the left.  The examiner reported that the
audiogram disclosed a sensory loss slopping from mild at
1,500 hertz to profound at 4,000 through 8,000 hertz,
bilaterally, and that speech and immittance test results
supported the pure tone findings.  The examiner further
concluded that the best estimate of the veteran's organic
hearing sensitivity was level II hearing on the right and
level IV hearing on the left.

In a March 1995 private audiometry evaluation report, it was
noted that testing of the veteran's hearing status disclosed
threshold levels of 45, 55, 80 and 105 decibels in the right
ear and 30, 45, 80 and 90 decibels in the left ear at 1,000,
2,000, 3,000 and 4,000 hertz, respectively.  It was reported
that auditory speech discrimination revealed 72 percent
correct in the right ear and 80 percent correct in the left
ear.  It was also remarked that the veteran had a 40 percent
loss in the right ear and 30 percent loss in the left ear.

In a letter of June 1995, Dr. Petersen related that the
veteran had about a 30 percent loss in the left ear and 40
percent in the right ear, that the veteran's speech
discrimination was good, 72 percent on the right and 80
percent on the left; and that these findings were consistent
with hearing loss of pure tones.  The physician further
stated that the curves were consistent with noise induced
hearing loss.

In July 1995, the veteran together with his spouse appeared
at a hearing on appeal conducted in the RO.  At that time,
the veteran elected to represent himself and waived his right
to a representative for purposes of the hearing.  He
testified that he wore hearing aids, but they were not
helpful; that he experienced hearing problems at work; and
that most of the time he had to stop what he was doing to get
close enough to hear.  He also referred to the opinion of
personal treatment providers regarding the extent of his
hearing disability.

Of record is a letter, dated in July 1995, from W. K. Dick,
Ph.D., who related that he had seen the veteran for an
audiometry evaluation in March 1995; that pure tone air and
bone conduction thresholds revealed a bilateral, precipitous
sloping, mild-to-profound sensorineural hearing loss; and
that the veteran's speech reception thresholds were 27
decibels in the right ear and 25 decibels in the left ear.
He added that auditory speech discrimination scores obtained
at 30-decibel sensation level were 72 percent in the right
ear and 80 percent in the left ear.

On a VA audiometry study of the veteran's hearing in August
1995, pure tone results reflected 25, 50, 80 and 110 decibels
in the right ear and 25, 40, 80 and 95 decibels in the left
ear at 1,000, 2,000, 3,000 and 4,000 hertz, respectively.
The average threshold level for those frequencies was 66
decibels in the right ear and 60 decibels in the left.  The
speech recognition scores (CNC) were 92 percent correct in
the right ear and 86 percent correct in the left ear.  The
examiner commented that the audiogram revealed mild-to-
profound sensory hearing loss above the 1,000 hertz,
bilaterally, and that the speech and immittance test results
supported the pure tone findings.  The examiner added that
speech discrimination required multiple lists, bilaterally;
and that CNC "max" was achieved at 80 decibels on the right
and 90 decibels on the left, and were consistent with those
obtained in December 1994.  The examiner concluded that the
best estimate of the veteran's organic hearing sensitivity
was level II hearing on the right and level III hearing on
the left.

I. Entitlement to an Increased Rating for Bilateral Hearing
Loss
from February 21, 1991, to December 31, 1995.

Concerning the veteran's assertions that he should have been
entitled to a disability rating higher than 10 percent for
his service-connected bilateral hearing loss, it is noted by
the Board that the claims folder contains his service medical
records, VA examination and treatment reports, private
clinical reports, statements by private audiologists and
physicians, and the veteran's and his wife's testimony.  In a
rating decision of October 1991 the RO increased the
disability rating for the bilateral hearing loss from a
noncompensable level to 10 percent, effective February 21,
1991.  A VA audiometry study in September 1991 revealed pure
tone air conduction threshold levels of 15, 40, 75 and 100
decibels in the right ear and 15, 40, 75 and 95 decibels in
the left ear at 1,000, 2,000, 3,000 and 4,000 hertz,
respectively.  The average threshold level for those
frequencies was 58 decibels in the right ear and 56 decibels
in the left ear.  Speech recognition ability was 96 percent
correct in the right ear and 66 percent correct in the left
ear.  These audiometry results translate to hearing level II
in the right ear and hearing level VI in the left ear under
the Table VI, 38 C.F.R. � 4.87 (1995).  Under Diagnostic Code
6101, a 10 percent disability is warranted when hearing level
in one ear is II and when it is VI in the other.  See Table
VII, 38 C.F.R. � 4.87 (1995).

The Board further observes that the veteran had another VA
audiometry evaluation in December 1994.  The results of that
evaluation translate to level II hearing on the right and
Level IV hearing on the left.  According to the applicable
schedular criteria (Diagnostic Code 6100), the disability
rating assignable for his service-connected bilateral hearing
loss would be at a noncompensable level when the hearing
level in one ear is II and when it is IV in the other.
Nevertheless, the authorized examination most favorable to
the veteran has been selected by the VA in the determination
of the assignment of the disability rating for the veteran's
service-connected bilateral hearing loss for the period from
February 21, 1991, to December 31, 1995.

II.  Entitlement to an Increased (Compensable) Disability
Evaluation for
Bilateral Hearing Loss, effective January 1, 1996.

Since December 1994, the veteran was afforded another VA
examination for rating purposes in an effort to obtain
results that fairly reflected the degree of his hearing
impairment.  As stated earlier, examinations for hearing
impairment are conducted using the controlled speech
discrimination tests together with the results of the
puretone audiometry test.  They are controlling in the
determination of the assignment of a disability rating for
service-connected bilateral hearing loss.  38 C.F.R. � 4.85
(1995).  The veteran had a VA audiometry evaluation in August
1995 to evaluate the severity and extent of his bilateral
hearing impairment.  The pure tone results reflected
threshold levels of 25, 50, 80 and 110 decibels in the right
ear and 25, 40, 80 and 95 decibels in the left ear at 1,000,
2,000, 3,000 and 4,000 hertz, respectively.  The average
threshold level for those frequencies was 66 decibels in the
right ear and 60 decibels in the left.  The speech
recognition scores (CNC) were 92 percent correct in the right
ear and 86 percent correct in the left ear.  These audiometry
results, which reflect the best estimate of the veteran's
organic hearing sensitivity, translate to level II hearing on
the right and level III hearing on the left under the Table
VI, 38 C.F.R. � 4.87 (1995).

The Board also notes that the most recent VA audiometry
findings confirmed those found during the VA audiometry
evaluation in December 1994.  Moreover, the Board observes
that these VA audiometry evaluations disclosed improved
scores, and the Board recognizes that the veteran's hearing
might have improved despite the assertions and testimony by
his wife and him.  It should be noted that they are lay
persons, not audiology experts, and do not possess the
necessary experience, education and knowledge to render an
opinion as to the extent and severity of hearing impairment.
The disability picture in question does not more nearly
approximate the schedular criteria for the next higher
evaluation.  38 C.F.R. � 4.7 (1995).  It is, therefore, the
judgment of the Board that a compensable disability
evaluation for the veteran's service-connected bilateral
hearing loss, effective January 1, 1966, is not warranted.
See Table VII, 38 C.F.R. � 4.87 (1995).

Although the veteran has submitted medical evidence from
sources other than the VA on the degree of his hearing loss,
the United States Court of Veterans Appeals has recognized
that the assignment of disability ratings for hearing
impairment is derived by a mechanical application of the
rating schedule to the numeric designations assigned after
audiometry evaluations are rendered.  Lendenmann, 3 Vet.App.
at 349.  While private audiometry findings have been
submitted, the current VA rating scheme was implemented in
late 1987 for the stated purpose of providing more accurate
measurement of hearing impairment and appropriate
compensation to hearing impaired veterans.  52 Fed. Reg.
44117 (November 18, 1987).  The providers of the alternative
audiology evaluations have not stated that that the same
evaluative criteria utilized by VA were the basis of the
assessments for the Board to question the reliability of the
VA examinations of record.  It should be noted that the VA
and private examinations report essentially consistent pure
tone audiometry decibel loss.  Hence, based on the September
1991 audiometry results, which are the most favorable to the
veteran, the Board cannot conclude that a schedular
disability rating in excess of 10 percent is warranted for
the veteran's bilateral hearing loss from February 21, 1991,
to December 31, 1995.  Subsequent examinations do not support
a continuation of a compensable disability evaluation at this
time.

ORDER

An increased rating for bilateral hearing loss, evaluated as
10 percent disabling from February 21, 1991, to December 31,
1995, is denied.

An increased (compensable) disability evaluation for
bilateral hearing loss, effective January 1, 1996, is denied.

	MARK J. SWIATEK
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), 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 -


judge_norm: KENNETH R ANDREWS, JR

judge_role: Member, Board of Veterans' Appeals

text:
Citation NR: 9616000
Decision Date: 06/07/96		Archive Date: 06/18/96
DOCKET NO.  93-19 673	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased rating for osteochondritis of
multiple joints, currently evaluated as 50 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

W.R. Spargo, Associate Counsel

INTRODUCTION

The appellant served on active duty in the United States Navy
from February 1946 to December 1947.  In a March 1951 Rating
Decision, service connection was granted for rheumatoid
arthritis of multiple joints by the Department of Veterans
Affairs Regional Office (VARO) in Boston, Massachusetts.  A
100 percent disability rating was assigned based on a
pronounced degree of symptomatology shown while hospitalized
from December 18, 1950 to January 31, 1951.  In an October
1954 Rating Decision, VARO reduced the appellant�s evaluation
to 50 percent.

Since the October 1954 Rating Decision, an evaluation of 50
percent has been periodically confirmed and continued.  This
appeal arose from an April 1993 Rating Decision of the St.
Petersburg VARO, which denied the appellant an increased
evaluation in excess of 50 percent for osteochondritis.  In
an August 1995 Decision, the Board remanded the case for a VA
examination by a specialist in rheumatology in order to
determine the precise nature and extent of the appellant�s
disability.  In October 1995, VARO again denied the appellant
an increased rating, and the case was thereafter transferred
to the Board for the present adjudication.

It does not appear from the evidence that VARO has considered
the issue of entitlement to an extraschedular rating pursuant
to 38 C.F.R. � 3.321(b)(1) (1995) for the appellant�s service
connected osteochondritis of multiple joints.  Under Fisher
v. Principi, 4 Vet. App. 57, 60 (1993), the question of
extraschedular consideration is a separate issue from that of
the appropriate schedular rating to be assigned.  Further,
under Floyd v. Brown, No. 92-970 (U.S. Vet. App. April 17,
1996), although the Board may be obliged to raise the issue
of potential extraschedular consideration, based upon a
liberal reading of the documents and oral testimony of
record, the Board cannot make that determination in the first
instance.  Accordingly, the question of potential
extraschedular consideration for osteochondritis of multiple
joints is referred to the attention of VARO for appropriate
action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in substance, that his service
connected osteochondritis of multiple joints has increased in
severity, warranting a disability rating in excess of 50
percent.  In a May 1996 Informal Hearing Presentation, the
appellant�s representative requested that another VA
examination be conducted because range of motion testing of
the affected joints did not yield definitive results in the
most recent September 1995 VA examination.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), 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 the preponderance of the
evidence is against the appellant�s claim.  An increased
disability rating for osteochondritis of multiple joints is
therefore denied.

FINDINGS OF FACT

1.  A 50 percent disability rating for an arthritic condition
has been in effect since December 1954.

2.  The appellant�s osteochondritis currently affects the
appellant�s sacroiliac joint, ankle and cervical and lumbar
spine.

3.  The range of motion of affected joints cannot be
clinically ascertained due to a lack of cooperation.

CONCLUSION OF LAW

The appellant�s service connected osteochondritis of multiple
joints is no more than 50 percent disabling according to the
schedular criteria. 38 U.S.C.A. � 1155 (West 1991 & Supp.
1995); 38 C.F.R. � 4.71a, Diagnostic Codes 5003, 5271, 5290,
5292 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant is seeking an increased disability rating for
osteochondritis of multiple joints, currently evaluated as 50
percent disabling.  The Board finds that the appellant has
presented a well grounded claim for an increased evaluation
within the meaning of 38 U.S.C.A. � 5107(a) (West 1991 &
Supp. 1995).  That is, the Board finds that he has presented
a claim which is plausible.  A claim that a condition has
become more severe is well grounded where the condition was
previously service connected and rated, and the claimant
subsequently asserts that a higher rating is justified due to
an increase in severity since the original rating. See Jones
v. Brown, 7 Vet. App. 134, 138 (1994); Proscelle v.
Derwinski, 2 Vet. App. 629 (1992).  The Board is also
satisfied that all relevant facts have been properly
developed.  No further assistance to the veteran is required
to comply with the duty to assist mandated by 38 U.S.C.A. �
5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke
v. Derwinski, 1 Vet. App. 90 (1990).

It is essential in the evaluation of a service-connected
disability that the disability be viewed in relationship to
its history. 38 C.F.R. �� 4.1, 4.130 (1995); Peyton v.
Derwinski, 1 Vet. App. 282, 287 (1991).  The Board has
carefully reviewed all of the medical evidence of record.
The medical findings are compared to the criteria in the VA
schedule for Rating Disabilities. 38 C.F.R. Part 4 (1995).
In so doing, it is the Board�s responsibility to weigh the
evidence before it. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).  The Board is obligated to take into consideration
the appellant�s reports of pain and functional loss. 38
C.F.R. �� 4.40, 4.45, 4.59 (1995). See Hicks v. Brown, No.
94-287 (U.S. Vet. App. Nov. 27, 1995); Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1991); Ferraro v. Derwinski,
1 Vet. App. 326, 330 (1991).

The appellant was first diagnosed with rheumatoid arthritis
during active duty.  For many years, the appellant complained
of pain and stiffness in several joints.  In August 1952, a
VA examination referred specifically to arthritis in the
spine, right shoulder and right hip.  A July 1955 VA
examination and October 1955 medical review, however, found
no clinical evidence of rheumatoid arthritis.

During a February 1959 VA examination, the physician noted
that the back was difficult to examine due to much voluntary
spasm.  In any event, there seemed to be minimal loss of
motion.  The appellant was diagnosed with osteochondritis of
the dorsal spine and right sacroiliac joint.  The lumbar
spine and shoulders were also affected.

From approximately 1980, the appellant has been treated for
his joint disability at Riviera Beach VA Medical Center.  A
September 1985 VA examination revealed osteoarthritis of the
cervical spine.  Spondylolysis and spondylolisthesis were
found at L5-S1.  During a November 1990 VA examination, the
physician observed that the appellant walked with a slightly
stooped posture, but no awkwardness or stiffness was evident
during ambulation, dressing, undressing, sitting or standing.
In contrast, considerable awkwardness and difficulty was
obvious when the appellant was asked to arise from the supine
position on the examining table and stand.  Flexion,
extension and lateral rotation of the cervical spine were
practically normal.  Forward flexion of the lumbosacral spine
was limited to approximately 40 degrees.  There was no
evidence of peripheral joint involvement of the fingers,
wrists, elbows, knees or ankles.  The physician noted the
prior diagnoses of rheumatoid arthritis, but rather diagnosed
degenerative arthritis, generalized.

During a June 1992 VA examination, the appellant complained
of pain in all joints.  It was observed that the appellant
walked into the examining room obviously holding his body in
a restricted manner instead of free flowing motion of the
joints.  Any attempt to move the head was met with quite some
resistance, so that total motion was not more than 10 to 15
degrees.  The appellant held the shoulders in a practically
immobile fashion, resisting any motion.  Arms and hands were
held in a semiflexed position, and mobility of the finger
joints was described as markedly limited.  The motion of the
spine was limited to not more than 15 to 20 degrees, and the
hips were noted as immobile.  The knee joints raised the foot
only.  The examiner concluded that the appellant showed
marked limitation of the joints without definite signs of
swelling.  The impression was that of diffuse degenerative
joint disease.  X-rays taken in October 1992 revealed mild
degenerative changes of the cervical spine, hips, pelvis and
ankles.  Mild degenerative changes of the lumbosacral spine
were also reported, along with spondylolisthesis with L5 over
S1.  There was no evidence of arthritic change regarding the
shoulders, elbows and knees.

In March 1993, a VA orthopedic physician examined the
appellant and reviewed the foregoing x-ray results.  The
examiner indicated that much of the appellant�s complaints
were on an emotional basis, although he was sure that there
existed some degenerative disease.  It was noted that prior
examiners had found it difficult to examine range of motion
due to poor patient cooperation.  Significantly, the
physician stated that �[t]he extreme degree of anxiety [the
appellant] has about moving the joints precludes any sort of
accurate assessment of their true function.  In any event I
do not feel that his condition has changed significantly in
the past few years.�  The examiner stated that physical
examination of the appellant was �extremely difficult�
because of lack of cooperation on range of motion testing.
Unofficially observed range of motion while the appellant
walked and dressed was far greater than when formal range of
motion testing was conducted.  �[M]easurements were taken
several times [but] cooperation from the appellant was
totally absent.�

In September 1995, the appellant was examined by a VA
rheumatologist.  Upon musculoskeletal physical examination,
�[I]t was almost impossible to examine the [appellant�s]
range of motion . . . the [appellant] kept tightening up his
musculature, on all movements.�  The examiner stated that no
evidence of rheumatoid arthritis existed.  The examiner
reviewed the October 1992 x-rays and reiterated the results
regarding the presence of degenerative changes.  The examiner
concluded by noting that the appellant could not cooperate
with the examination.

Analysis

In evaluating service connected disabilities, the Board must
assess functional impairment and determine the extent to
which a service connected disability adversely affects the
ability of the body to function under the ordinary conditions
of daily life, including employment. 38 C.F.R. �� 4.2, 4.10
(1995).  It is also incumbent upon the Board to evaluate a
veteran pursuant to the most appropriate diagnostic code(s).
Tedeschi v. Brown, 7 Vet. App. 411, 413-14 (1995).

In this instance, based on recent clinical and x-ray
findings, the Board finds that four Diagnostic Codes (DC),
5003 (degenerative arthritis), 5271 (limitation of motion of
the ankle), 5290 (limitation of motion of the cervical spine)
and 5292 (limitation of motion of the lumbar spine) are
appropriate for consideration.

DC 5003 directs that �[d]egenerative arthritis established by
x-ray findings will be rated on the basis of limitation of
motion under the appropriate diagnostic codes for the
specific joint or joints involved.� 38 C.F.R. Part 4 (1995).

The schedular criteria for DC 5271 contemplate a 10 percent
disability rating where there is moderate limitation of
motion of the ankle.  A 20 percent disability rating is
warranted for marked limitation. 38 U.S.C.A. �� 1155 (West
1991 & Supp. 1995); 38 C.F.R. � 4.71a, DC 5271 (1995).

The schedular criteria for DC 5290 contemplate a 10 percent
disability rating where there is slight limitation of the
cervical spine.  A 20 percent disability rating is warranted
for moderate limitation.  A 30 percent disability rating is
warranted for severe limitation. 38 U.S.C.A. �� 1155 (West
1991 & Supp. 1995); 38 C.F.R. � 4.71a, DC 5290 (1995).

The schedular criteria for DC 5292 contemplate a 10 percent
disability rating where there is slight limitation of the
lumbar spine.  A 20 percent disability rating is warranted
for moderate limitation.  A 40 percent disability rating is
warranted for severe limitation. 38 U.S.C.A. �� 1155 (West
1991 & Supp. 1995); 38 C.F.R. � 4.71a, DC 5292 (1995). See 38
C.F.R. � 4.66 (1995)(directing that lumbosacral and
sacroiliac joints should be considered as one anatomical
segment for rating purposes).

Terms such as �mild,� �moderate� and �severe� are not defined
in the VA Schedule for Rating Disabilities.  Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence to the end that its decisions are �equitable and
just.� 38 C.F.R. � 4.6 (1995).  It should also be noted that
use of terminology such as �mild� or �moderate� by VA
examiners and others, although an element of evidence to be
considered by the Board, is not dispositive of an issue.  All
evidence must be evaluated in arriving at a decision
regarding an increased rating. 38 C.F.R. �� 4.2, 4.6 (1995).

After having considered all of the relevant evidence, the
Board finds that an increased disability rating in excess of
50 percent is not warranted.  Although rheumatoid arthritis
(DC 5002) potentially yields a 100 percent schedular rating,
the appellant has not received a diagnosis of rheumatoid
arthritis from 1980 to the present.  The September 1995 VA
examination was specifically performed, in pertinent part, to
establish whether rheumatoid arthritis existed.  The
physician made affirmative findings to the contrary.  The
examinations performed have been frustrated in each attempt
to accurately determine the range of motion of affected
joints.  We note, however, and place great weight on the
observation of the examining physician in March 1993 that the
observed range of motion while the appellant walked and
dressed was far greater than the attempted formal testing.
This suggests a mild or moderate limitation, which under the
above-cited  codes would combine to no more than 40 percent.
38 C.F.R. � 4.25 (1995).

Importantly, VA regulations do not allow the reduction of the
appellant�s 50 percent rating, which has been in effect since
December 1954.  VA regulations establish that:

[a] disability which has been
continuously rated at or above any
evaluation of disability for 20 or more
years for compensation purposes . . .
will not be reduced to less than such
evaluation except upon a showing that
such rating was based on fraud.

38 C.F.R. � 3.951(b) (1995).

In light of the foregoing, the Board finds that a schedular
evaluation in excess of 50 percent is not forthcoming.  As
discussed previously, however, we refer to VARO the issue of
an extraschedular grant pursuant to 38 C.F.R. � 3.321 (1995).

The Board acknowledges the appellant�s representative�s
assertion that the most recent VA examination was inadequate
because it failed to articulate definitive results from range
of motion testing of affected joints.  While the Board agrees
that range of motion testing is imperative for rating the
appellant�s particular disability, the evidence of record
indicates that performance of another VA examination would
not yield information beyond that already accumulated.  There
is ample evidence in the record of the appellant�s repeated
uncooperative behavior with regard to attempted range of
motion testing.  In 1990, a VA examiner indicated that
unofficial observations showed no awkwardness or stiffness,
while the appellant had significant difficulties when
formally guided through range of motion testing.  Again, in a
June 1992 VA examination, the appellant resisted any motion
of the shoulders and hips.  In March 1993, the VA examiner
was unable to provide range of motion data because although
measurements had been taken several times, �cooperation from
the appellant was totally absent.�  In September 1995, the VA
examiner found it �almost impossible� to test the appellant�s
range of motion, and the examination was concluded with the
physician�s comment that the appellant could not cooperate.

It appears that the appellant has been given repeated
opportunities for documentation of range of motion.  Because
attempts have been continuously thwarted, it is doubtful that
the scheduling of yet another examination would assist the
appellant in forwarding his claim.  As mentioned previously,
the issue of an extraschedular grant of benefits is still to
be considered by VARO.  This evaluation, however, should rely
on objective medical evidence as already associated with the
claims folder.  VARO�s duty to assist the appellant has been
discharged.

ORDER

An increased disability rating for osteochondritis of
multiple joints, in excess of 50 percent, is denied.

	KENNETH R. ANDREWS, JR.
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), 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 -


judge_norm: JOAQUIN AGUAYO-PERELES

text:
Citation NR: 9617000
Decision Date: 06/21/96		Archive Date: 06/28/96
DOCKET NO.  94-28 036	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia

THE ISSUE

Entitlement to service connection for residuals of an injury
to the left anterior tibial region.

REPRESENTATION

Appellant represented by:	Georgia Department of Veterans
Service

WITNESSES AT HEARING ON APPEAL

Appellant, his wife, and Mr. [redacted]

ATTORNEY FOR THE BOARD

P. Lambrakopoulos, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1965 to
December 1966.

This appeal arises from an August 1993 rating decision of the
Atlanta, Georgia, Regional Office (RO), which denied service
connection for residuals of a left anterior tibial
contusion/abrasion.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that he suffered an injury
to his left lower extremity during active military service,
and that he has had pain ever since that injury.  He states
that the pain is now constant.

DECISION OF THE BOARD

The Board of Veterans� Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. � 7104 (West 1991 & Supp.
1995), 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 the evidence favors the veteran�s claim for
service connection for residuals of injury to the left tibia,
and it is accordingly granted.

FINDINGS OF FACT

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

2.  The veteran suffered a contusion and abrasion of the left
anterior tibial region as a result of an accident in November
1966.

3.  On Department of Veterans Affairs (VA) examination in May
1993, the veteran was diagnosed with residuals of a crush
injury of the left tibia with unfused tibial tuberosity.

CONCLUSION OF LAW

Residuals of an injury to the left anterior tibial region
were incurred in active service.  38 U.S.C.A. � 1110 (West
1991); 38 C.F.R. �� 3.303, 3.304 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran�s claim is well
grounded, in that he has presented a plausible claim.
38 U.S.C.A. � 5107(a) (West 1991); Edenfield v. Brown,
8 Vet.App. 384, 388 (1995) (en banc); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).  Pursuant to 38 U.S.C.A. � 5107(a)
(West 1991), the Board is obligated to assist the veteran in
the development of his claim.  The veteran underwent a VA
examination in May 1993.  In addition, all relevant VA
medical records have been obtained.  While the veteran has
indicated that a private physician examined his left foot for
complaints of a broken toe at some point after active
service, it has not been indicated that the veteran was
treated by that or any other private physician for residuals
of a left anterior tibial injury.  Consequently, upon a
review of the records, the Board finds that all evidence
necessary for adjudication of the veteran�s claim has been
obtained, and that the duty to assist him, as mandated by
38 U.S.C.A. � 5107(a) (West 1991), has been satisfied.

Compensation is payable to a veteran �[f]or disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in line of duty, in the active
military, naval, or air service, during a period of war. . .
.�  38 U.S.C.A. � 1110 (West 1991).

In November 1966, the veteran�s left leg was caught between a
milk cart and a railing, resulting in a contusion and
abrasion of the left anterior tibial region.  The veteran
complained of extensive pain.  It was recommended that the
veteran be observed for deep tissue necrosis.  He was
discharged to duty the day after the accident.

In late December 1966, a physical profile of the veteran was
prepared.  That physical profile is divided into six
categories (P, U, L, H, E, S).  The �L� stands for �lower
extremities� and includes �the feet, legs, pelvic girdle,
lower back musculature, and the lower spine (lower lumbar and
sacral) in regard to strength, range of motion, and general
efficiency.�  Army Regulation 40-501, Change 35,  9-3(b)(3)
(Feb. 9, 1987).  The number �1� appears in each of the six
categories.  �An individual having a numerical designation of
�1� under all factors is considered to possess a high level
of medical fitness and, consequently is medically fit for any
military assignment.�  Army Regulation 40-501, Change 35,
 9-3(c)(1).  See generally McIntosh v. Brown, 4 Vet.App.
553, 555 (1993).  Moreover, on examination in August 1967, in
connection with enlistment into the National Guard, no lower
extremity abnormalities were noted, and the veteran did not
complain of any left leg pain.

In February 1993, the veteran was seen at a VA medical
facility for complaints of chronic pain in the left lower
leg.  He reported increased frequency of pain at night and
while driving long distances.  On examination, he had mild
tenderness to palpation over the proximal left anterior
tibia.  The diagnostic impression was leg pain.  On X-ray
examination, he was found to have a �slight deformity of the
proximal shaft of the fibula which may be developmental
versus due to old trauma.�  No significant degenerative
changes were identified.  There was a question of a small
joint effusion as manifested by questionable fullness in the
region of the suprapatellar bursa.  The tibial tuberosity
remained unfused with the adjacent tibia.

In May 1993, the veteran underwent a VA examination to assess
the nature of his disorder.  It was reported that he had not
missed work as a result of his left leg problem.  The pain
was described as throbbing and as localized to the foreleg,
just below the knee joint.  The pain improved somewhat with
ambulation.  On examination, there was no swelling.  A
deformity of distal left femoral hypertrophic condylar
bossing was reported.  There was a prominent anterior tibial
tubercle.  The diagnosis was residual of a crush injury of
the left tibia with unfused tibial tuberosity.

At a December 1993 hearing, the veteran, his wife, and his
brother-in-law all testified that the veteran had had pain
ever since the November 1966 injury.  The veteran and his
wife also indicated that he had not sought medical treatment
until recently.  He testified that he had been able to
continue working as a postal letter carrier because his left
leg had bothered him only when sitting down.  He also
indicated that the inservice injury had been below his left
knee close to the left ankle.  He stated that his current
condition was in the shin bone, approximately six inches
above the ankle.

On the one hand, there is evidence that the veteran currently
has various left lower extremity abnormalities that do not
involve the left anterior tibial region.  On the other hand,
the May 1993 diagnosis was that of a crush injury of the left
tibia with unfused tibial tuberosity.  The service medical
records regarding the inservice injury do not indicate what
specific part of the veteran�s left anterior tibia was
affected by the November 1966 injury.

The veteran�s lower extremities were found to be of a high
level of medical fitness in late December 1966 and no left
lower extremity problems were reported or noted in August
1967.  However, those reports are not necessarily conclusive
in this case.  For instance, the August 1967 examination and
medical history forms did not indicate that the veteran had
bilateral scars of the knees, even though that information
had been noted on examination in January 1965 and August
1966.  Moreover, while the only evidence of continuity of
symptomatology is the lay testimony from the veteran and his
witnesses, the veteran has maintained that the pain is in his
left lower extremity, not in the knee or in the femoral area.
Therefore, the veteran has indicated that he has pain only in
his left tibial region.

In light of the left leg injury reported in service, the
February 1993 finding of mild tenderness over the proximal
left anterior tibia, the May 1993 VA diagnosis of residuals
of a crush injury of the left tibia, and the testimony from
the veteran and his lay witnesses, the Board finds that
residuals of an injury to the left anterior tibial region
were incurred in active military service.  At the very least,
�there is an approximate balance of positive and negative
evidence� regarding this claim, and the �benefit of the
doubt� is, accordingly, given to the claimant.  38 U.S.C.A.
� 5107(b) (West 1991).

ORDER

Service connection for residuals of an injury to the left
anterior tibial region is granted.

	JOAQUIN AGUAYO-PERELES
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), 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.
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judge_norm: BARBARA B COPELAND

condition: knee

text:
Citation NR: 9618000
Decision Date: 06/25/96		Archive Date: 07/08/96
DOCKET NO.  94-13 307	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina

THE ISSUE

Entitlement to a compensable rating for patellofemoral
syndrome of the right knee.

REPRESENTATION

Appellant represented by:	AMVETS

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

J. R. Bryant, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 1978 to April
1983 and from November 1984 to November 1992.

This matter comes before the Board of Veterans� Appeals
(Board) of the Department of Veterans Affairs (VA) on appeal
from a rating determination of November 1993, by the Winston-
Salem, North Carolina, Regional Office (RO), which
established service connection for bilateral patellofemoral
syndrome assigning a noncompensable evaluation.  A ten
percent evaluation was subsequently assigned to the veteran�s
left knee in October 1995.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that service-connected patellofemoral
syndrome of the right knee is more disabling than currently
evaluated.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), 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 the preponderance of the
evidence supports a 10 percent rating for patellofemoral
syndrome of the right knee.

FINDING OF FACT

The veteran's service-connected patellofemoral syndrome of
the right knee is productive of pain on motion.

CONCLUSION OF LAW

The criteria for a 10 percent rating for service-connected
patellofemoral syndrome of the right knee have been
satisfied.  38 U.S.C.A. �� 1155, 5107(a) (West 1991 & Supp.
1995); 38 C.F.R. �� 4.40, 4.71a, Diagnostic Codes 5003, 5019-
5024 (1995).

REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background.  Service connection was established for
bilateral patellofemoral syndrome in a November 1993 rating
decision. This decision was based on the veteran's service
medical records and the reports of VA treatment and
evaluation.  A noncompensable rating was assigned.  In his
subsequent notice of disagreement, the veteran stated that he
had been treated for bilateral knee pain since 1987 and that
the RO had not considered pain as a factor in its decision.
He requested a ten percent rating for each knee.

At a June 1993 VA examination for rating purposes, the
veteran complained of persistent aching and discomfort in the
anterior knees, worse with prolonged standing or sometimes
after walking several blocks.  On examination, there was no
swelling or tenderness.  Slight crepitation in the anterior
knees was noted on flexion.  There was no limitation of
motion of the knees.  X-rays revealed no significant
pathology.  The physical examiner�s diagnosis was bilateral
knee pain, cause undetermined.

At his personal hearing in May 1994, the veteran testified
that his knees ache constantly and that he has symptoms of
snapping, cracking and popping.  There is pain on squatting
and his knee disability significantly limits his activities.
He was issued knee braces in service but was not currently
wearing them as they did not relieve the pain.  He further
testified to missing several days of work in 1994 as a
construction worker due to his knee disability and that his
knees become swollen and red during the course of the day.
According to the veteran his knees do not respond to
treatment or medication and his only relief is rest.  He
maintained that he is entitled to a compensable evaluation
due to chronic problems with his service-connected knee
disability since active service.

Outpatient treatment reports dated from June 1995 to
September 1995 show the veteran complaining of bilateral knee
pain.  When seen in May 1995, there was medial joint line
tenderness, bilaterally and patellofemoral crepitus.  Motion
of the knees was possible from 0 degrees to 120 degrees.  A
June 26 entry noted mild tenderness of the right knee on
palpation.  An MRI study performed in June showed a normal
right knee and a suspected chronic anterior cruciate ligament
tear of the left knee.

At a VA examination in August 1995 the veteran presented a
long-standing history of bilateral knee pain.  He reported
progressive discomfort underneath his knee caps and treatment
with physical therapy and medication with little relief.  He
experienced occasional instability and occasional locking and
related that his knees would sometimes become red and warm.
Physical examination of the knees revealed no gross effusion
and equal quadriceps muscle mass.  There was negative
anterior and posterior drawer bilaterally with excellent end-
points on the left.  He had both negative Lachman�s, and
pivot shift bilaterally.  He also had negative varus or
valgus instability, negative McMurray�s and negative reverse
pivot shift.  There was minimal crepitation of the kneecaps
bilaterally.  He had full range of motion without discomfort
but positive pain with compression and range of motion
underneath the kneecaps.

Analysis.  The veteran�s patellofemoral syndrome of the right
knee is currently rated under diagnostic code 5019
(bursitis).  The Schedule for Rating Disabilities provides
that "the diseases under diagnostic codes 5013 through 5024
will be rated on limitation of motion of affected parts, as
arthritis, degenerative, except gout which will be rated
under diagnostic code 5002."

Under the Schedule for Rating Disabilities (38 C.F.R. Part
4), a noncompensable evaluation is provided for limitation of
flexion of the leg to 60 degrees or limitation of extension
to 5 degrees.  A 10 percent rating is provided for limitation
of flexion to 45 degrees or limitation of extension to 10
degrees.  38 C.F.R. Part 4, Diagnostic Codes 5260, 5261.
Normal knee flexion is to 140 degrees and normal extension is
to 0 degrees.  38 C.F.R. � 4.71, Plate II.

In the present case, limitation of motion to a compensable
degree has not been shown.  The provisions of Diagnostic Code
5003, however, also provide that when limitation of motion is
noncompensable, a rating of 10 percent may be assigned for a
major joint affected by limitation of motion.  The limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm or satisfactory evidence of painful
motion.  In the case now before the Board, the veteran�s
right knee disability has been noted to result in crepitus
and pain with compression and range of motion under the
kneecap.

In view of the long-standing and persistent complaints of
right knee pain, symptoms of instability and evidence of pain
with compression and range of motion under the kneecaps, the
Board is of the opinion the clinical findings are consistent
with a 10 percent evaluation for functional loss due to pain,
under the provisions of 38 C.F.R. � 4.40 and Diagnostic Code
5003.  The veteran has not shown limitation of motion
warranting a schedular evaluation greater than 10 percent.
Accordingly, the Board finds that the veteran is entitled to
a 10 percent rating for patellofemoral syndrome of the right
knee.

ORDER

A 10 percent rating for patellofemoral syndrome of the right
knee is granted subject to regulations applicable to the
payment of monetary awards.

	BARBARA B. COPELAND
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), 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.
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benefit: competency

text:
Citation NR: 9619000
Decision Date: 07/12/96		Archive Date: 07/22/96
DOCKET NO.  94-22 409	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California

THE ISSUE

Whether the veteran is incompetent for Department of Veterans
Affairs (VA) purposes.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1951 to
August 1952.

This matter comes before the Board of Veterans' Appeals (the
Board) from an August 1992 rating determination of the VA
Regional Office (RO) in San Diego, California which
determined that the veteran was incompetent for VA purposes.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that he is capable of handling his own
funds and that he is competent for VA purposes.  He maintains
that he pays his rent and bills on time, and has no problems
saving money.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), 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 the veteran may not be
considered incompetent for VA purposes.

FINDINGS OF FACT

1.  In May 1992, the RO proposed to rate the veteran
incompetent.

2.  In August 1992, the RO rated the veteran incompetent from
the date of that decision.

3.  The August 1992 RO decision that the veteran was
incompetent was made without observation of applicable
regulatory criteria, reflecting participation in the
incompetency determination by the Veterans Services Officer.

CONCLUSION OF LAW

The veteran may not be considered incompetent for VA
purposes.  38 U.S.C.A. � 5107 (West 1991); 38 C.F.R. � 3.353
(1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the veteran�s claim regarding
the determination of his competency for VA purposes is well-
grounded within the meaning of 38 U.S.C.A. � 5107(a)(West
1991).  That is, the claim is a plausible one. Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).  Further, there is no
need for any additional development before an informed
determination can be made on the issue under review.

The record shows that in the May 1992 rating decision that
proposed the incompetency rating, the evidence consisted of
an April 1992 VA psychiatric hospitalization report and a May
1992 VA social worker report.  In the hospital summary, it
was reported that the veteran lived in a rented room in a
house on the Mexican border, but that his living situation
was tenuous and unstable; that he had  no recent employment,
and that his thought content was positive for suicidal
ideation, auditory and visual hallucinations.  The diagnoses
were: continuous alcohol dependence, organic hallucinosis,
organic affective disorder, and �rule out� major depression.
An examiner opined that given the veteran�s extensive history
of alcoholism and his inability to care for his financial
status and spending ability, the patient was thought to need
a payee.

The social worker requested that a fiduciary be appointed for
the veteran, noting that he had numerous VA hospitalizations,
at which times the veteran had come in disorganized, and not
knowing where his money was or how he had spent it.  Further,
that during the April 1992 hospitalization, he refused board
and care, stating that he did not need help and left the
hospital to stay with a friend.  The social worker explained
that without adequate money management it was likely that the
veteran would give away his money to friends or purchase
alcohol with it.  It was the opinion of the examiner that the
veteran was not competent for VA financial purposes.  It was
reported that the veteran engaged in spending sprees and
impulsive trip taking, and that his father handled his
financial affairs.  The examiner�s comments suggest that
complete information was not available.

After notifying the veteran in June 1992 of the proposed
incompetency rating, the RO received no response from the
veteran.  There was no other pertinent evidence on file at
the time of the August 1992 RO determination of the veteran�s
incompetency.

Of record is a VA Form 27-555 (CERTIFICATE OF LEGAL CAPACITY
TO RECEIVE AND DISBURSE BENEFITS), dated in November 1992 and
signed by a Veterans Services Officer (VSO), which
established a supervised direct payment beneficiary payee
designation for the veteran�s VA benefits.

The determination of the veteran�s competency for VA purposes
requires the application of specific regulatory provisions
found at 38 C.F.R. � 3.353 (1995) before a rating of
incompetency can be sustained.  The rating decision in August
1992 that implemented the veteran�s proposed incompetency
status reveals that pertinent provisions of the regulation
were not applied in the veteran�s case.  This is also
confirmed in the statement of the case he was issued in May
1993.

A mentally incompetent person is one who because of injury or
disease lacks the mental capacity to contract or to manage
his affairs, including disbursement of funds without
limitation.  38 C.F.R. � 3.353(a).  Under � 3.353(b), which
outlines specifically how competency determinations are to be
conducted, the VSO plays a significant role in the
evidentiary development as well as the final determination.
For example, it is provided, inter alia, that the VSO is
responsible for collecting information on the veteran�s
social, economic and industrial adjustment. (Emphasis added).
If the VSO agrees with the incompetency determination, he or
she appoints a fiduciary and, if not, the VSO forwards all
evidence to the rating agency, accompanied by a statement of
conclusions.  The RO then, in turn, reconsiders its prior
decision and, if necessary, obtains another examination.
Under � 3.353(d), there is a presumption in favor of
competency that must be considered.

It should be noted that the evidence from the veteran added
to the record since the above mentioned  VA clinical records
clearly warranted further medical review in light of the
provisions of � 3.353(c) and the presumption in favor of
competency found at � 3.353(d).  However, any attempt to
remedy this deficiency through further development would
simply not be adequate in view of the critical defect
discussed below.  See, e.g., Bentley v. Derwinski, 1 Vet.App.
28, 31 (1990).

Current legal precedent requires the reinstatement of the
veteran�s competency for VA purposes, principally on account
of the RO�s failure to include the VSO at a critical stage of
the incompetency determination.  It appears from the record
that the VSO�s role in the veteran�s incompetency
determination did not go beyond the mechanical preparation of
the above mentioned VA Form 27-555.  The United States Court
of Veterans Appeals has held with regard to an incompetency
determination that the VSO is intended to play an integral
role, an affirmative obligation to develop evidence, in the
determination of the veteran�s ability to handle his affairs
which cannot be freely ignored.  Coleman v. Brown, 5 Vet.App.
371, 374 (1993).  The subsequent changes to � 3.353(b) were
nonsubstantive with respect to the role of the VSO.  60 Fed.
Reg. 55791-92 (Nov. 3, 1995).

The Court has also held that a rating determination
effectuated without observance of applicable law and
regulation is void ab initio and must be set aside as �not in
accordance with the law�.  Brown v. Brown, 5 Vet.App. 413,
422 (1993); Dofflemeyer v. Derwinski, 2 Vet.App. 277, 281
(1992).  Therefore, in view of the well established legal
precedent, the Board finds that the RO's August 1992
incompetency determination is void ab initio and must,
therefore, be set aside and that the veteran�s competency for
VA purposes must be restored.

ORDER

The veteran may not be considered incompetent for VA
purposes, and his appeal is granted.

	MARK J. SWIATEK
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, � 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), 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.

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