judge_norm: RONALD R BOSCH

text:
Citation Nr: 0311000
Decision Date: 06/02/03    Archive Date: 06/10/03

DOCKET NO.  97-15 518	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Carol L. Eckart

INTRODUCTION

The veteran had active military service from May 1962 to
November 1965, and prior service in the reserves.

This matter comes to the Board of Veterans' Appeals (Board)
from the Department of Veterans Affairs (VA) Manila Regional
Office (RO) April 1996 rating decision.  The RO denied the
veteran's application to reopen his claim of service
connection for bilateral hearing loss.

In February 1998 the Board determined that new and material
evidence had been submitted to reopen a claim of entitlement
to service connection for bilateral hearing loss, and
remanded the claim of entitlement to service connection
therefor to the RO for further development and adjudicative
action.

In May 2002 the RO denied entitlement to service connection
for bilateral hearing loss.

The case has been returned to the Board for further appellate
review.

The Board's February 1988 decision/remand pointed out that in
November 1997, the veteran's accredited representative
appeared to have raised a claim of increased (compensable)
rating for the service-connected left thigh disability.  To
date this matter has not yet been adjudicated by the RO, and
it is again referred back to the originating agency for
initial consideration and appropriate adjudicative action.
Godfrey v. Brown, 7 Vet. App. 398 (1995).

Tinnitus was diagnosed in connection with a February 2001 VA
Audiology examination of the veteran.  The inferred issue of
entitlement to service connection for tinnitus is also
referred to the RO for initial consideration and appropriate
adjudicative action.  See Godfrey, supra.

In December 2002 the Board undertook additional development
of the claim of entitlement to service connection for
bilateral hearing loss.  This has been completed.

FINDINGS OF FACT

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

2.  The probative, competent medical evidence of record
establishes that a profound bilateral sensorineural hearing
loss was caused by noise exposure in service while the
veteran served as a driver in a motor pool.

CONCLUSION OF LAW

Bilateral hearing loss was incurred in active service.  38
U.S.C.A. �� 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R.
� 3.303 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's DD Form 214 reveals that he served in a
transportation company as light vehicle driver.

His service medical records show some evidence of hearing
loss.  On enlistment in the Army Reserves medical examination
in October 1960, a decreased hearing acuity was noted in the
right ear; "deafness" was diagnosed.  When he was examined
in October 1960 for Reserve enlistment he had the following
pure tone thresholds in decibels:

HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
5
20
30
LEFT
0
0
0
0
15

On service release medical examination in May 1961, whispered
voice testing was 15/15, bilaterally; no pertinent reports or
findings were made.

On re-enlistment medical examination in April 1962, moderate
bilateral high frequency hearing loss was diagnosed.  When he
was examined in April 1962 for Reserve enlistment he had the
following pure tone thresholds in decibels:

HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
15
35
50
LEFT
-5
-5
70
40
45

On service separation medical examination in November 1965,
pure tone thresholds in decibels were recorded as "5" for
both ears at 500, 1000 and 4000 Hertz.  No other pertinent
findings were recorded.

Evidence submitted includes a February 1977 VA audiological
examination report, at which time bilateral mild
sensorineural hearing loss at the speech frequency range and
serious to profound hearing loss at 4000 to 8000 Hertz was
diagnosed.  The examiner indicated that the audiological test
results were consistent with noise-induced type of hearing
loss.  Hearing was considered adequate for conversation
purposes.

An April 1993 statement from GH, FRACS, with an attached
audiogram study, reveals a more than 10-year history of
defective hearing, noting that the veteran was exposed to
noise while in the service, otherwise his history was "nil
relevant."  Based on medical and audiological examination
results, bilateral sensorineural deafness, worse on the left,
was diagnosed.

A September 1994 uninterpreted audiogram is consistent with
the presence of bilateral hearing loss.  A report attached to
this audiogram interpreted the findings as suggestive of mild
to severe mixed hearing loss of the right ear and moderate to
severe mid to high frequency hearing loss of the left ear.
The etiology of the veteran's progressive deafness was
unknown.

On VA audiological examination in March 1996, the veteran
reported a history of gradual hearing loss since 1965.  On
examination auditory thresholds in the frequencies 500,
1,000, 2,000, 3,000, and 4,000 Hertz ranged from 90 to 110
decibels in the right ear, and from 90 to 105 decibels on the
left.  Speech recognition using the Maryland CNC test was 70
percent correct, bilaterally. Bilateral profound
sensorineural hearing loss was diagnosed.

A June 1999 report from a private ear nose and throat (ENT)
specialist reflects that this physician examined the veteran
and obtained a service history from him of working in a heavy
equipment motor pool, with exposure to a great deal of noise.
After service he was noted to have worked as a mechanic from
1968 to 1972.  His hearing was now so poor that he had to
lip-read.  He indicated that he had a normal test in 1960
prior to entering the service.  He denied head trauma or
family history of deafness.  Audiology revealed a moderate to
low mid frequency and severe high frequency sensorineural
hearing loss in the left ear, and a moderate low frequency
and severe high frequency sensorineural hearing loss in the
right ear.

The ENT specialist described the veteran as having a
significant bilateral sensorineural hearing loss with a
history consistent with marked noise exposure.  However, the
physician remarked that the low frequency hearing loss shown
was not typically caused by noise exposure.  It was opined
that the veteran's hearing loss was probably not purely
caused by noise exposure.

The report of a February 2001 VA examination included a
claims file review and audiological testing.  The veteran's
chief complaint was hearing difficulty for more than 30 years
with noise being the situation of greatest difficulty
hearing.

He was said to have served 8 years in the Army.  His military
history of noise exposure was the sound of tanks and heavy
equipment.  He also complained of tinnitus.

On the authorized audiological evaluation in the February
2001 examination, pure tone thresholds, in decibels, were as
follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
90
95
100
100
100+
LEFT
85
85
90
95
100+

Speech audiometry revealed bilateral speech recognition
ability of 80 percent.  The diagnosis included tinnitus,
bilateral.  Pure tone averages were still worse than
predicted from speech reception thresholds and from stapedial
reflex thresholds, which suggested a 60B average hearing
levels on both ears.  The veteran most likely had
sensorineural hearing loss.  The examiner opined that whether
or not this hearing loss was related to a pre service hearing
loss could not be determined.

In February 2003 the veteran underwent a VA examination.  The
examiner reviewed the claims file in detail and commented on
the history therein.  Present pure tone audiometry was noted
to reveal profound hearing loss bilaterally with poor
discrimination score on each ear.  The prior audiologic work
ups were reviewed.  The examiner noted that the October 1960
audiology report revealed essentially normal thresholds
except for an anomaly on the right reflecting a 30 decibel
threshold at 4000 Hertz and 60 decibels at 6000 hertz.  The
examiner opined that this finding was likely due to a
technical error or poor placement of the headphones.  The
examiner noted the April 1962 findings showing a moderate
hearing loss on the higher frequencies bilaterally.  The
examiner then noted the November 1965 findings of essentially
normal thresholds bilaterally and was unable to explain the
improvement in thresholds.

A noise induced hearing loss or permanent threshold shift was
noted to be progressive and irreversible.  The post service
hearing test results from September 1994 through May 1999
were reviewed and noted to consistently show hearing loss
disabilities in both ears.

The examiner commented that although there might be some
inconsistencies in the progression of the veteran's hearing
loss, it was evident that his hearing was deteriorating with
time and irreversible.  The exposure to noise in the service,
as alleged, could be a major contributory factor to this
problem.  However, the possibility of other factors
contributing to the progression of hearing loss could not be
discounted, such as his post service work as a mechanic and
the effect of presbycussis or hearing loss due to aging.
Thus, the examiner opined that it was reasonable to say that
the veteran's current hearing loss was not entirely due to
his exposure to noise during his enlistment.

On the examination itself, the examiner noted the veteran's
chief complaint to be decreased hearing, most problematic in
a noisy environment.  His history of noise exposure working
in the motor pool in the service was noted.  He was also
noted to have tinnitus since the 1960's which the examiner
attributed as due to outer hair cell loss secondary to noise
induced hearing loss.

On the authorized audiological evaluation in February 2003,
pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
95
95
105
105
100
LEFT
90
90
90
100
95

Speech audiometry revealed speech recognition ability of 40
percent in the right ear and of 44 percent in the left ear.

The diagnosis was profound sensorineural hearing loss,
bilateral.  The examiner's opinion was that the veteran's
present hearing loss was due to a noise-induced problem.  The
veteran's previous exposure to noise during service as
"heavy equipment operator" could have contributed mainly to
this problem.

Criteria

Service connection may be granted for a disease or injury
incurred in or aggravated by active service in the line of
duty. 38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �
3.303 (2002).

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) (2002).

The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

A preexisting injury or disease will be considered to have
been aggravated by active military, naval or air service,
where there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. �� 1110, 1131, 1153 (West 2002).

Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
preservice disability underwent an increase in severity
during service.  This includes medical facts and principles
which may be considered to determine whether the increase is
due to the natural progress of the condition.

Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 C.F.R. � 3.306(b) (2002).

With 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 diagnosis including the word
"chronic."  Continuity of symptomatology is required where
the condition noted during service is not in fact shown to be
chronic or where a 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) (2002).

If not shown in service, service connection may nevertheless
be granted for sensorineural hearing loss if shown disabling
to a compensable degree during the first post service year.
38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R.
�� 3.307, 3.309 (2002).

For the purpose of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent.  38 C.F.R. � 3.385 (2002).

38 C.F.R. �3.385, although prohibiting an award of service
connection where audiometric test scores are within the
established limits, does not prevent a veteran from
establishing service connection on the basis of post-service
evidence of hearing loss related to service when there were
no audiometric scores reported at separation from service.
See Ledford v. Brown, 3 Vet. App. 87 (1992).

When hearing loss is not initially manifested during service
or within the presumptive period, "direct" service connection
may also be established by evidence demonstrating that the
disease was in fact incurred or aggravated by service.  See
Hensley v. Brown, 5 Vet. App. 155 (1993).

VA audiometric readings prior to June 30, 1966, and service
department audiometric readings prior to October 31, 1967,
must be converted from American Standards Association (ASA)
units to International Standard Organization (ISO/ANSI)
units.

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 (1990); 38 C.F.R. �� 3.102, 4.3
(2002).

The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary.  When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. � 5107
(West Supp. 2002).

Analysis

Preliminary Matter: Duty to Assist

During the pendency of this appeal, the Veterans Claims
Assistance Act of 2000 (VCAA) became effective.  38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp.
2001).  This liberalizing legislation is applicable to the
appellant's claims.  38 U.S.C.A. � 5107 note (Effective and
Applicability Provisions) (West Supp. 2002).

Besides eliminating the requirement that a claimant submit
evidence of a well-grounded claim, it provides that VA will
assist the claimant in obtaining evidence necessary to
substantiate a claim.  Specifically, it requires VA to notify
the claimant and the claimant's representative, if any, of
information required to substantiate a claim.

The VCAA also provides for a broader VA obligation to obtain
relevant records and advise a claimant of the status of those
efforts, and contains an enhanced requirement to provide a VA
medical examination or obtain a medical opinion in cases
where such a procedure is necessary to make a decision on a
claim.

VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a)).  The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. � 3.156(a) which is effective August
29, 2001.

Except for the amendment to 38 C.F.R. � 3.156(a), the second
sentence of 38 C.F.R. � 3.159(c), and 38 C.F.R. �
3.159(c)(4)(iii), VA stated that "the provisions of this rule
merely implement the VCAA and do not provide any rights other
than those provided in the VCAA." 66 Fed. Reg. 45,629.
Accordingly, in general where the record demonstrates that
the statutory mandates have been satisfied, the regulatory
provisions likewise are satisfied.

The RO made reasonable efforts to obtain relevant records
adequately identified by the appellant; in fact, it appears
that all evidence identified by the appellant relative to
this claim has been obtained and associated with the claims
folder.  All available service medical records have been
obtained, and the veteran has not alleged that additional
service medical records exist that have not been associated
with the claims file.  Private medical records were obtained.
The Board remanded this matter in February 1998 and
internally requested further development in August 2002.

VA examinations were conducted in accordance with the Board's
remand and development instructions, and copies of the
reports are associated with the file.  The development the
Board sought was completed in that the nature and etiology of
claimed hearing loss were addressed through the medical
evaluation that the Board had requested.  See Stegall v.
West, 11 Vet. App. 268 (1998).

In addition, in the April 1996 rating decision, the RO
further notified the veteran of the evidence that is
necessary to substantiate his claim.  In addition, the RO
informed the veteran in the Statement of the Case, and
Supplemental Statements of the Case of the information,
medical evidence, or lay evidence necessary to support his
claim.

In summary, the record shows that the RO notified the
appellant of the evidence considered regarding the issue, and
of the reasoning for the rating determinations through the
statement of the case and several supplemental statements of
the case, and other correspondence pertinent to the current
claim.  The appellant was afforded the opportunity to submit
arguments and evidence in support of the claim.

In light of the development completed at the RO, the Board
finds that the relevant evidence available for an equitable
resolution of the appellant's claim has been identified and
obtained.  There is no indication that there is any
additional relevant competent evidence to be obtained either
by the VA or by the veteran.  Quartuccio v. Principi, 16 Vet
App. 183 (2002)

Therefore, the Board finds that VA can provide no further
assistance that would aid in substantiating the claim.
McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v.
Gober, 126 F.3d 1464 (Fed. Cir. 1997).  See also Baker v.
West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet.
App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470,
472 (1992).

In any event, any deficiencies in the duties to notify and to
assist constitute harmless error and are not prejudicial to
the appellant in view of favorable determination as further
addressed below.

Service Connection

The Board reiterates the basic three requirements for
prevailing on a claim for service connection: (1) medical
evidence of a current disability; (2) medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and, (3) medical evidence
of a nexus between the claimed inservice injury or disease
and a current disability.  See Hickson, supra.

The current disability requirement has been satisfied, as the
veteran has been diagnosed with a profound sensorineural
hearing loss in both ears.

The veteran's MOS of having served as a driver in a
transportation company supports his contentions of having
been exposed to noise from vehicle engines.

Medical evidence reflects that the veteran appears to have
had a preexisting hearing loss upon entrance examination of
April 1962.  However the findings of the separation
examination revealed no evidence of hearing loss in either
ear, even upon converting the ASA units to ISO/ANSI units.

Post service records clearly reflect that his hearing
progressively deteriorated after service.  The VA examination
reports from March 1996, February 2001 and February 2003 have
all diagnosed sensorineural hearing loss, as did the private
medical records.  The medical evidence from February 1977
through February 2003 has consistently indicated that noise
exposure was the likely cause of this hearing loss.

The most probative evidence in this case is the February 2003
VA examination and claims file review.  Based on the findings
from the examination and review of medical evidence, the
examiner gave an opinion that exposure to noise during
service could have contributed mainly to the veteran's
current hearing loss problem.

Although the examiner did remark that the hearing loss may
not entirely be due to this inservice exposure, he indicated
that the inservice noise exposure could be a major
contributory factor to this problem.

The evidence reflects that a preexisting hearing loss was
apparently shown in April 1962, but was not apparent in
November 1965 when the veteran left service.

Thereafter, a hearing loss was shown about ten years later in
February 1977.  Thus, it is unclear whether aggravation took
place.  Although the examiner did not specifically give an
opinion as to whether the noise exposure aggravated a
preexisting hearing loss condition, the opinion suggesting
that the inservice noise was a major contributing factor, is
sufficient for the purpose of considering whether service
connection is warranted.  There is no evidence that
contradicts this examiner's opinion indicating that noise
exposure in service played a major part in the veteran's
current hearing loss.

The Board finds that the probative, competent evidence of
record establishes that the veteran's bilateral hearing loss
has been linked to his active service on the basis of
environmental exposure to noise.

ORDER

Entitlement to service connection for a bilateral hearing
loss is granted.

____________________________________________
	RONALD R. BOSCH
	Veterans Law Judge, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: MARJORIE A AUER

disposition: remanded

text:
Citation Nr: 0312000
Decision Date: 06/09/03    Archive Date: 06/16/03

DOCKET NO.  01-06 668	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for hearing loss.

ATTORNEY FOR THE BOARD

Sabrina M. Tilley, Counsel

INTRODUCTION

The veteran served on active duty from July 1973 to July
1978.  The veteran has also reported subsequent service with
the Air National Guard and the Army National Guard.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 20, 2000 rating decision of the North
Little Rock, Arkansas, Regional Office (RO) of the Department
of Veterans Affairs (VA).  By this rating, service connection
was denied for defective hearing.  The veteran was provided
notice of this decision in July 21, 2000, and the veteran was
advised in correspondence in August 2000 that the time for
appeal expired on July 21, 2001.

By a letter dated on July 25, 2000, noted o have been
received by the RO on July 31, 2000 (See the July 2001
Statement of the Case), the veteran expressed disagreement
with the evaluation of his hearing.  The RO considered this
statement to be a new claim.  However, the Board finds that
inasmuch as the veteran's response was received within one-
year from the July 2000 rating decision, it constitutes a
Notice of Disagreement.  38 C.F.R. � 20.201.  As a
consequence, the Board characterizes issue on appeal as it is
set forth on the title page of this decision.

REMAND

The Board notes that on November 9, 2000, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000) (codified as amended at 38 U.S.C.A. � 5100 et
seq. (West 2002)) became law.  This law redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.  This law also eliminated the concept of a
well-grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims (hereinafter the
Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA could not
assist in the development of a claim that was not well
grounded.  This change in the law is applicable to all claims
filed on or after the date of enactment of the VCAA, or filed
before the date of enactment and not yet final as of that
date.  VCAA, � 7(a), 114 Stat. at 2099-2100.

This statute was implement by the recently published
regulations, to be codified as amended at 38 C.F.R. �� 3.102,
3.156, 3.159, 3.326(a).  66 Fed. Reg. 42,620 (August 29,
2001).  The RO's attention is directed to these new
provisions as they pertain to notice and duty to assist
requirements to which VA must comply.

Because of these factors and in view of the recent
promulgation of implementing regulations, a remand to the RO
in this case is required.  Specifically, because the RO has
not considered in the first instance whether any additional
notification or development action is required under the
VCAA, it would be potentially prejudicial to the appellant if
the Board were to proceed to issue a decision at this time.
See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec.
Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg.
49,747 (1992)).  Accordingly, this case is REMANDED to the RO
for the following:

1.  The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
�� 5102, 5103, and 5103A (West 2002);
66 Fed. Reg. 45,620 (August 29, 2001)
(codified as amended at 38 C.F.R. � 3.102,
3.156, 3.159, 3.326(a)) are fully complied
with and satisfied.

2.  Thereafter, the RO should readjudicate
this claim.  If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative, if any,
should be provided a supplemental
statement of the case (SSOC).  The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal.  An appropriate period of time
should be allowed for response.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

_________________________________________________
	MARJORIE A. AUER
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


judge_norm: DEBORAH W SINGLETON

disposition: denied

condition: eye

text: Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is denied.

text:
Citation Nr: 0313000
Decision Date: 06/17/03    Archive Date: 06/24/03

DOCKET NO.  00-04 119A	)	DATE
	)
	)

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

THE ISSUES

1.  Whether there was clear and unmistakable error in
February 10, 1972, RO rating decision that denied the
veteran's claim of entitlement to a total disability rating
based on individual unemployability due to service-connected
disabilities (TDIU).

2.  Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. � 1318.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Steven D. Reiss, Counsel

INTRODUCTION

The veteran served on active duty from October 1942 to July
1945, including combat service during World War II, and his
decorations included the Purple Heart Medal and the Combat
Infantryman Badge.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from September 1998 and June 1999 ratings
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Winston-Salem, North Carolina.  In the
September 1998 rating action, the RO denied the appellant's
claim of entitlement to DIC benefits under the provisions of
38 U.S.C.A. � 1318.  In the June 1999 rating action, the RO
denied the appellant's claim that the February 10, 1972, RO
rating decision contained clear and unmistakable error in
denying the veteran's claim of entitlement to a TDIU.  The
appellant is the widow of the veteran and she perfected a
timely appeal of these determinations to the Board.

In an unappealed August 1978 rating decision, the RO denied
the appellant's claim of service connection for the cause of
the veteran's death.  In her November 1998 statement, she
asserted that the veteran had shrapnel in his lungs "as
shown in the June 1973 VA examination report."  In January
1972, the veteran was afforded a formal VA examination in
conjunction with his TDIU claim, and X-rays were performed as
part of that examination; in discussing his chest X-ray, the
radiologist reported the veteran had metallic foreign bodies
at the anterior end of the right first rib.  In addition, in
August 1999, the appellant submitted a private medical report
in which the veteran's former treating physician discussed
the veteran's health prior to his death in July 1978.  The
Board interprets the foregoing as an informal application to
reopen a claim of service connection for the cause of the
veteran's death and it is referred to the RO for appropriate
action and adjudication.

FINDINGS OF FACT

1.  All identified relevant evidence necessary for
disposition of the appeal has been obtained.

2.  In an April 1947 rating decision, the RO increased the
ratings for the veteran's service-connected disabilities, as
reflected in the following:  residuals of gunshot wound
injuries to the right upper arm muscle, affecting muscle
groups V and VI, 30 percent disabling; residuals of gunshot
wound injuries to the right elbow and forearm, affecting
muscle groups VII and VIII percent disabling, 30 percent
disabling; loss of motion of the left thumb with restricted
motion of the left index finger with partial destruction of
the metacarpals, 30 percent disabling; residuals of a gunshot
wound injury to the left hand and wrist, 10 percent
disabling; a disfiguring gunshot wound chin scar, 10 percent
disabling; and residuals of a gunshot wound of the left upper
thigh with retained foreign bodies in muscle group XIII, 10
percent disabling.  The veteran's combined disability rating
was 80 percent, effective April 1, 1946.

3.  In October 1971, the veteran filed a claim seeking a
TDIU, asserting that he had not worked since October 1970 due
to his service-connected disabilities.

4.  In a February 10, 1972, rating decision, the RO denied
the veteran's claim of entitlement to a TDIU; later that
month, the veteran was provided notice of the decision and of
his appellate rights, but he did not appeal this
determination, and the decision became final.

5.  The veteran filed no claims seeking an increased rating
for any service-connected disability or for service
connection for any disability subsequent to the RO's April
1947 rating decision, and there is no indication that he was
receiving VA or private medical care for his service-
connected disabilities.

6.  There was a tenable basis for the RO's February 10, 1972,
determination.

7.  The veteran died in July 1978 and the immediate cause of
death was pulmonary edema that was due to or a consequence of
mitral insufficiency and rheumatic heart disease; no other
conditions were identified as significant in contributing to
his death.

8.  At the time of death, the evaluation and characterization
of the veteran's service-connected disabilities remained as
reflected in the April 1947 RO rating decision.

9.  At the time of his death the veteran was not in receipt
of, or entitled to receive, compensation for service-
connected disability that was rated totally disabling by a
schedular or unemployability rating for a period of ten years
immediately preceding death.

CONCLUSIONS OF LAW

1.  The February 10, 1972, rating decision denying the
veteran's claim of entitlement to a TDIU was not clearly and
unmistakably erroneous.  38 U.S.C.A. � 7105 (West 2002);
38 C.F.R. �� 3.104, 3.105(a), 4.16 (1972, 2002).

2.  The criteria for entitlement to DIC benefits pursuant to
38 U.S.C.A. � 1318 have not been met.  38 U.S.C.A. � 1318
(West 2002); 38 C.F.R. � 3.22(a)(2)(i) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. �� 5100, 5103, 5103A, 5107, and 5126, and
codified as amended at 5102, 5103, 5106 and 5107 (West 2002))
redefined VA's duty to assist an appellant in the development
of a claim.  Guidelines for the implementation of the VCAA
that amended VA regulations were published in the Federal
Register in August 2001.  66 Fed. Reg. 45620 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R. �� 3.102, 3.156(a),
3.159, and 3.326(a)).  The Board finds that all relevant
evidence has been obtained with regard to the appellant's
claims alleging clear and unmistakable error in a February
10, 1972, rating decision that denied entitlement to a TDIU
and for DIC benefits under the provisions of 38 U.S.C.A.
� 1318, and that the requirements of the VCAA have in effect
been satisfied.

The appellant and her representative have been provided with
a statement of the case and supplemental statement of the
case that discuss the pertinent evidence, and the laws and
regulations related to the claims, and essentially notify
them of the evidence needed by the appellant to prevail on
the claims.  In a July 2001 letter, the RO notified the
appellant of the evidence needed to substantiate her claims
and offered to assist him in obtaining any relevant evidence.
This letter gave notice of what evidence the appellant needed
to submit and what evidence VA would try to obtain.  See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  There is no
identified evidence that has not been accounted for and the
appellant's representative has been given the opportunity to
submit written argument.

The record reflects that the appellant has been notified of
the law and regulations governing clear and unmistakable
error claims as well as those relating to entitlement to
benefits under 38 U.S.C.A. � 1318.  With respect to the
former, although the United States Court of Appeals for
Veterans Claims (Court) has held that the VCAA is potentially
applicable to all pending claims (see Holliday v. Principi,
14 Vet. App. 280 (2001)), the Court recently held that VA's
duties to notify and assist contained in the VCAA are not
applicable to clear and unmistakable error (CUE) motions.
See Sorakubo v. Principi, 16 Vet. App. 120; 122 (2002);
Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en
banc).  With respect to the latter, the Board notes that the
appellant was advised of the regulatory amendments made
during the course of her appeal in the June 2000 supplemental
statement of the case and in a September 2001 RO letter that
informed her that in January 2000, VA had amended 38 C.F.R.
� 3.22.  In this decision, however, the Board has applied the
version of the regulation most favorable to the appellant,
consistent with Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).  As such, she is not prejudiced.  See Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).

Under the circumstances, the Board finds that the appellant
has been provided with adequate notice of the evidence needed
to successfully prove her claim and that there is no
prejudice to her by appellate consideration of the claims at
this time without a prior remand of the case to the RO for
providing additional assistance to the appellant in the
development of his claim as required by the VCAA or to give
the representative another opportunity to present additional
evidence and/or argument.  Bernard; see also Karnas.  In this
case, the record on appeal demonstrates the futility of any
further evidentiary development and that there is no
reasonable possibility that further assistance would aid her
in substantiating her claims.  Hence, no further notice or
assistance to the appellant is required to fulfill VA's duty
to assist him in the development of the claim.  Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Background

The record reflects that the veteran served in combat during
World War II and was awarded the Purple Heart Medal and the
Combat Infantryman Badge.  In an April 1947 rating decision,
the RO increased the ratings for the veteran's service-
connected disabilities, as reflected in the following:
residuals of gunshot wound injuries to the right upper arm
muscle, affecting muscle groups V and VI, 30 percent
disabling; residuals of gunshot wound injuries to the right
elbow and forearm, affecting muscle groups VII and VIII
percent disabling, 30 percent disabling; loss of motion of
the left thumb with restricted motion of the left index
finger with partial destruction of the metacarpals, 30
percent disabling; residuals of a gunshot wound injury to the
left hand and wrist, 10 percent disabling; a disfiguring
gunshot wound chin scar, 10 percent disabling; and residuals
of a gunshot wound of the left upper thigh with retained
foreign bodies in muscle group XIII, 10 percent disabling.
The veteran's combined disability rating was 80 percent,
effective April 1, 1946.

Prior to filing an application seeking a TDIU in October
1971, the veteran asserted no claims seeking increased
ratings for his service-connected disabilities, or to service
connection for any condition subsequent to the RO's April
1947 rating decision.  In addition, there is no indication
that he was receiving VA or private medical care for his
service-connected disabilities.  Further, the ratings
reflected in the April 1947 rating decision remained in
effect when he filed the October 1971 TDIU claim.

On his TDIU application, the veteran reported that he had
last employed in October 1970 and that he was unable to work
due to the impact of his service-connected disabilities.  In
support of this claim, the veteran submitted an October 1971
report prepared by his treating physician, Dr. E. H. Smith.
In the report, Dr. Smith stated that the veteran had
increasing pain and limitation of motion from the shrapnel
wounds to his right shoulder, right hip and right chest, and
that he was totally disabled.

In January 1972, the veteran was afforded a VA examination in
conjunction with his TDIU application.  Following a review of
the veteran's medical records and his physical examination of
the veteran, the examiner stated that he did not believe that
the veteran's service-connected disabilities had
significantly changed since the 1940s, and in fact had long
since healed.  The physician added that the veteran's
service-connected disabilities had been "anatomically
stationary" for many years and that he was no more disabled
than he was at that time.

Based on the above, in a February 10, 1972, rating decision,
the RO cited the January 1972 VA examination revealed that he
had rheumatic fever and determined that the condition was not
incurred in service.  The RO also found that the evidence was
insufficient to show any increase in the severity of the
veteran's service-connected disabilities or that he was
unemployable due to his service-connected disabilities.
Later that month, the RO notified the veteran of the
determination and of his appellate rights, but the veteran
did not file an appeal.

From February 1972 until the veteran's death in July 1978,
the veteran filed no claims seeking an increased rating for
any service-connected disability, or for service connection
for any other condition, and there is no indication that he
was receiving VA or private medical care for his service-
connected disabilities.  Indeed, there is no indication that
he sought formal medical treatment for his service-connected
disabilities since the 1940s.

In September 1998, the appellant filed a claim seeking
entitlement to DIC benefits under the provisions of 38
U.S.C.A. � 1318.  In an October 1998 rating action, the RO
denied her claim, explaining that entitlement to these
benefits was warranted only if:  (1) the veteran was entitled
to receive compensation at the time of his death for a
service-connected disability that was rated as totally
disabling for ten or more years immediately preceding his
death; or (2) the veteran was entitled to receive
compensation at the time of death for a service-connected
disability that was rated as totally disabling from the date
of his discharge from active duty for a period of not less
than five years immediately preceding his death.  The RO
indicated that because the veteran did not meet either of
these requirements, an award of DIC benefits under the
provisions of 38 U.S.C.A. � 1318 was not warranted.

In October 1998, the appellant filed a Notice of Disagreement
(NOD) challenging the RO's September 1998 determination.

Thereafter, in a November 1998 statement, the appellant noted
that at the time of his death, the veteran's combined rating
for his service-connected disabilities was 80 percent.  She
added that in October 1971 the veteran had filed a claim
seeking a TDIU because he was unable to work due to his
service-connected conditions.  The appellant maintained that
the veteran had been denied due process of law and should
have been rated as 100 percent disabled and granted a TDIU
back in 1972 and that she was thus entitled to DIC benefits
under the provisions of 38 U.S.C.A. � 1318.

In a July 1999 rating decision, the RO denied the appellant's
claim that the February 10, 1972, rating decision was clearly
and unmistakably erroneous, reasoning that alleged error
involved an exercise in judgment that "cannot be
characterized as undebatably erroneous."

In August 1999, the appellant submitted a report, dated
earlier that same month, which was prepared by the veteran's
former treating physician, Dr. E. H. Smith.  In the report,
Dr. Smith indicated that he had treated the veteran from 1951
until his death in 1978 and that he had rheumatic heart
disease with congestive heart failure and mitral
regurgiation.  Further, Dr. Smith opined that the veteran was
disabled for fifteen years prior to his death.  The appellant
stated that the evidence showed that the veteran was unable
to work and thus unemployable and that therefore VA should
have rated the veteran as 100 percent disabled in 1972.

In a June 2000 rating action, a copy of which was included as
part of the supplemental statement of the case dated later
that same month, the RO advised the appellant that, effective
January 21, 2000, VA had amended 38 C.F.R. � 3.22 to
eliminate hypothetical entitlement, and to instead restrict
the award of DIC benefits to cases where the veteran, during
his lifetime, had established a right to receive total
service-connected disability compensation for the period of
time required by Section 1318, or would have established such
right but for clear and unmistakable error in the
adjudication of a claim or claims.  In addition, the RO noted
that Dr. Smith's statement did not relate to the veteran's
service-connected disabilities, and that, in any event, was
not in his file or in VA custody at the time of his death.
As such, the RO confirmed and continued its denial of the
appellant's DIC claim.
In a September 2001 letter, the RO again advised the
appellant that in January 2000, VA amended 38 C.F.R. � 3.22
to restrict the award to DIC benefits to survivors of
deceased veterans to case where the veteran, in his lifetime:
(1) had been rated as totally disabled for a service-
connected condition(s) for at least ten years; or (2) would
have established that right but for clear and unmistakable
error by VA in adjudicating the veteran's claim.  In
addition, the RO stated that the regulation did not permit
"hypothetical entitlement" for DIC benefits under the
provisions of 38 U.S.C.A. � 1318.  Further, the RO indicated
that a stay had been placed on cases for DIC benefits under
the provisions of 38 U.S.C.A. � 1318 where the veteran was
not rated totally disabled for a continuous period of ten
years prior to his death because the cases, such as the
instant one, might involve "hypothetical entitlement."

In May 2002 written argument, the appellant's representative
asserted that the February 10, 1972, rating decision was
clearly and unmistakably erroneous and maintained that the
veteran should have been awarded a TDIU effective October
1970.

Analysis

Claim of clear and unmistakable error in the RO's February
10, 1972, rating decision

The appellant alleges clear and unmistakable error in the
RO's February 10, 1972, rating decision that denied his
application for a TDIU.  In support, she cites the veteran's
combined 80 percent service-connected disability rating and
Dr. Smith's October 1971 and August 1999 medical reports.  As
such, she contends that VA should have established the
veteran's entitlement to a TDIU, effective October 1970.

The Court has stated that clear and unmistakable error (CUE)
is a very specific and rare kind of error.  It is the kind of
error, of fact or of law, that when called to the attention
of later reviewers compels the conclusion, to which
reasonable minds could not differ, that their results would
have been manifestly different but for the error.  See Fugo
v. Brown, 6 Vet. App. 40, 43 (1993).  In Russell v. Principi,
3 Vet. App. 310 (1992), the Court set forth a three-pronged
test for determining when there is clear and unmistakable
error present in a prior decision.  These are (1) either the
correct facts, as they were known at the time, were not
before the adjudicator (i.e., more than a simple disagreement
as to how the facts were weighed or evaluated) or the
statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the error must be undebatable and of
the sort which, had it not been made, would have manifestly
changed the outcome at the time it was made; and (3) a
determination that there was clear and unmistakable error
must be based on the record and law that existed a the time
of the prior adjudication in question.  Russell v. Principi,
3 Vet. App. at 313-14.

In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined
and elaborated on the test set forth in Russell.  In Fugo the
Court stated:

CUE is a very specific and rare kind of
'error.'  It is the kind of error, of
fact or of law, that when called to the
attention of later reviewers compels the
conclusion, to which reasonable minds
could not differ, that the result would
have been manifestly different but for
the error. ... If a claimant-appellant
wishes to reasonably raise CUE there
must be some degree of specificity as to
what the alleged error is and, unless it
is the kind of error ... that, if true,
would be CUE on its face, persuasive
reasons must be given as to why the
result would have been manifestly
different but for the alleged error.  It
must be remembered that there is a
presumption of validity to otherwise
final decisions, and that where such
decisions are collaterally attacked, and
a CUE claim is undoubtedly a collateral
attack, the presumption is even
stronger.

Fugo, 6 Vet. App. at 43-44 (emphases added).  Thus, as a
threshold matter, a claimant must plead CUE with sufficient
particularity.  Only if this threshold requirement is met
does the Board have any obligation to address the merits of
the CUE claim.  See Phillips v. Brown, 10 Vet. App. 25 (1997)
(distinguishing denial of CUE due to pleading deficiency and
denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92
(1995) (same).  The Court has also held that allegations that
previous adjudications have improperly weighed and evaluated
the evidence can never rise to the stringent definition of
clear and unmistakable error.  See Baldwin v. West, 13 Vet.
App. 1, 5 (1999); Damrel v. Brown, 6 Vet. App. 242, 246
(1994).  Similarly, the Court has held that the VA's breach
of its duty to assist cannot form a basis for a claim of
clear and unmistakable error.  See Tetro v. Gober, 14 Vet.
App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382
(1994).

As a threshold matter, the Board finds that the arguments
advanced by the veteran allege CUE with the requisite
specificity.  See Phillips; Luallen.  Accordingly, the Board
will proceed to consider the merits of the appellant's claim.

As discussed above, in its February 10, 1972, rating
decision, the RO determined that the veteran was not
unemployable due to his service-connected disabilities.  The
evidence of record at the time of the 1972 determination
consisted of Dr. Smith's October 1971 report, the January
1972 VA examination report, and the statements of the
veteran.  In addition, the combined rating for his service-
connected disabilities was 80 percent, so the veteran met the
schedular prerequisite for an award of TDIU (see 38 C.F.R.
� 4.16 (1972 and 2002)).  In addition, the evidence showed
that the veteran had been unemployed since October 1970 and
that he attributed his unemployed status to his service-
connected disabilities.

As noted above, and as the RO explained in its July 1999
rating decision, allegations that previous adjudications have
improperly weighed and evaluated the evidence can never rise
to the stringent definition of clear and unmistakable error.
See Baldwin v. West, 13 Vet. App. at 5; Damrel v. Brown, 6
Vet. App. at 246.  As such, the appellant's argument that
because the veteran met the schedular criteria for a TDIU,
and given Dr. Smith's October 1971 medical report indicating
that the veteran was totally disabled, it was clear and
unmistakable error for the RO not to have established his
entitlement to that benefit must fail since she is
challenging the RO's evaluation of the medical evidence,
which also included contrary assessment of the January 1972
VA examiner.  Indeed, in Simmons v. West, 14 Vet. App. 84, 89
(2000) the Court, citing Fugo, reaffirmed the principle that
a request for reweighing the evidence cannot be as a basis
for a CUE claim, declaring that when there is evidence both
pro and con on the issue, it is impossible for the appellant
to succeed in showing that the result would have been
manifestly different.  Id.

Further, with respect to the appellant's argument that Dr.
Smith's August 1999 report supports her claim, the Board
reiterates that a determination that there was clear and
unmistakable error must be based on the record and law that
existed a the time of the prior adjudication in question.
Russell v. Principi, 3 Vet. App. at 313-14.  Because this
report is dated more than 27 years subsequent to the February
10, 1972, rating decision, it necessarily did not exist at
the time of that determination.

In sum, there is no indication that the correct facts, as
they were known at the time, were not before the RO, or that
the statutory or regulatory provisions extant at the time
were incorrectly applied.  Russell.  As such, the RO's
February 10, 1972, rating decision was not clearly and
unmistakably erroneous.

Claim of entitlement to DIC benefits under the provisions of
38 U.S.C.A. � 1318

In pertinent part, section 1318 of title 38, United States
Code, authorizes payment of DIC to a benefits-eligible
surviving spouse in cases where a veteran's death was not
service connected, provided the veteran was in receipt of or
entitled to receive compensation at the rate of 100 percent
(total rating) due to service-connected disability for a
period of ten or more years immediately preceding death.  The
statute was implemented at 38 C.F.R. � 3.22.

In Wingo v. West, 11 Vet. App. 307 (1998), the Court
interpreted 38 C.F.R. � 3.22(a) as permitting a DIC award in
a case where the veteran had never established entitlement to
VA compensation for a service-connected total disability and
had never filed a claim for such benefits that could have
resulted in entitlement to compensation for the required
period.  The Court concluded that the language of 38 C.F.R.
� 3.22(a) would permit a DIC award where it is determined
that the veteran "hypothetically" would have been entitled
to a total disability rating for the required period if he or
she had applied for compensation during his or her lifetime.

As noted above, effective January 21, 2000, VA amended 38
C.F.R. � 3.22 (the implementing regulation of 38 U.S.C.A. �
1318) to restrict the award of DIC benefits to cases where
the veteran, during his lifetime, had established a right to
receive total service-connected disability compensation for
the period of time required by Section 1318, or would have
established such right but for CUE in the adjudication of a
claim or claims.

In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) held that, for the purpose of determining whether a
survivor is entitled to "enhanced" DIC benefits under
38 U.S.C. � 1311(a)(2) (veteran required to have been rated
totally disabled for a continuous period of eight years prior
to death), the implementing regulation, 38 C.F.R. � 20.1106,
does permit "hypothetical entitlement."

In National Organization of Veterans' Advocates, Inc. v.
Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001)
(NOVA I), the Federal Circuit addressed a challenge to the
validity of 38 C.F.R. � 3.22, and found a conflict between
that regulation and 38 C.F.R. � 20.1106.  The Federal Circuit
concluded that the revised 38 C.F.R. � 3.22 was inconsistent
with 38 C.F.R. � 20.1106, which interprets a virtually
identical veterans benefit statute, 38 C.F.R. � 1311(a)(2),
and that VA failed to explain its rationale for interpreting
these virtually identical statutes (1311 and 1318) in
conflicting ways.  The Federal Circuit remanded the case and
directed VA to stay all proceedings involving claims for DIC
benefits under 38 U.S.C. � 1318 where the outcome is
dependent on 38 C.F.R. � 3.22 pending, the conclusion of
expedited rulemaking.

On April 5, 2002, VA amended 38 C.F.R. � 20.1106 to provide
that there would be no "hypothetical" determinations as to
whether a deceased veteran had been totally disabled for
eight years prior to death so that the surviving spouse could
qualify for the enhanced DIC benefit available under 38
U.S.C. � 1311(a)(2).  See 67 Fed. Reg. 16309-16317 (2002),
effective May 6, 2002.

In National Organization of Veterans' Advocates, Inc. v.
Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003)
(NOVA II), the Federal Circuit, after reviewing its holding
in NOVA I, acknowledged that VA had determined that the two
statutes at issue should be interpreted the same way and had
amended �38 C.F.R. � 20.1106 to provide that claims under
section 1311(a)(2), like claims under 1318, will be decided
taking into regard prior determinations issued during the
veteran's lifetime.  The Federal Circuit held that VA could
properly construe the "entitled to receive" language of
sections 1311(a)(2) and 1318 in the same way, and could
properly construe the language of the two statutory sections
to bar the filing of new claims, i.e., claims where no claim
had been filed during the veteran's life or the claim had
been denied and was not subject to reopening, i.e.,
"hypothetical entitlement" claims.

The result of the above is that "hypothetical entitlement"
is no longer a viable basis for establishing benefits under
either 38 U.S.C. �� 1311(a)(2) or 1318.  As such, the only
possible remaining ways of prevailing on this claim are:  (1)
by meeting the statutory duration requirements for a total
disability rating; or (2) by showing that such requirements
would have been met but for CUE in a previous rating
decision.

In Karnas v. Derwinski, 1 Vet. App. at 312-13, the Court held
that where a law or regulation changes after a claim has been
filed or reopened but before the administrative or judicial
appeal process has been concluded, the version most favorable
to the veteran should and will apply unless Congress provides
otherwise or permits the Secretary to do otherwise.

VA's General Counsel has interpreted Karnas to mean that
where a law or regulation changes during the pendency of a
claim for increased rating, the Board should first determine
whether the revised version is more favorable to the veteran.
In so doing, it may be necessary for the Board to apply both
the old and new versions of the regulation.  In this case,
the old version of 38 C.F.R. � 3.22, as interpreted to allow
for consideration of hypothetical entitlement, is clearly
more favorable to the appellant.

At the time of his death, the veteran's combined disability
rating was 80 percent, and, as discussed above, the Board has
determined that the February 10, 1972, RO rating decision
that denied his claim seeking entitlement to a TDIU was not
clearly and unmistakably erroneous.  As such, the veteran was
not in receipt of a 100 percent rating for 10 years prior to
his death in July 1978.

As the appellant acknowledges, the veteran was last employed
in October 1970 and thus, even assuming the Board had
determined that the February 10, 1972, rating decision was
clearly and unmistakably erroneous and assigned an October
1970 effective date as the appellant contends is warranted,
because the veteran died in July 1978, the award would
necessarily have been in effect for less than ten years prior
to his death.  As such, the criteria for benefits under
38 U.S.C.A. � 1318 would not have been met.  Moreover, the
effective date for a TDIU could not have been earlier that
October 1970 because the veteran was employed.  38 C.F.R.
� 4.16 (1972).

Further, during his lifetime, the veteran filed no claims
seeking increased ratings for any service-connected
condition, or for service connection for any disability
subsequent to the RO's April 1947 rating decision, and there
is no indication that he was receiving VA or private medical
care for his service-connected disabilities.  As such, there
is no formal or informal claim upon which to hypothetically
assert a right to increased VA compensation.  See 38 C.F.R.
� 3.157 (2002).  Moreover, neither the veteran during his
lifetime nor the appellant has, to date, challenged that part
of the RO's February 10, 1972, determination that service
connection was not warranted for rheumatic fever.

In sum, the Board has considered all bases for assignment of
a TDIU to satisfy the ten-year requirement under 38 U.S.C.A.
� 1318.  The Board, however, is constrained by the governing
laws and regulations, which, in this case, provide no basis
for relief.  Accordingly, because the veteran was not
entitled to a TDIU for ten years prior to his death, the
appellant is not entitled to DIC benefits under
38 U.S.C.A. � 1318.

Conclusion

As a final point, in reaching these determinations, the Board
does not wish in any way to diminish the veteran's heroic and
well-decorated World War II combat service, for which he was
awarded the Purple Heart Medal and the Combat Infantryman
Badge.  Under the facts of this case, however, the Board has
no discretion and the appellant's claims must be denied.

ORDER

The RO's February 10, 1972, rating decision denying
entitlement to a TDIU was not clearly and unmistakably
erroneous.

Entitlement to DIC under the provisions of 38 U.S.C.A. � 1318
is denied.

____________________________________________
	DEBORAH W. SINGLETON
	Veterans Law Judge, Board of Veterans' Appeals

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

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


judge_norm: S L KENNEDY

text:
Citation Nr: 0314000
Decision Date: 06/26/03    Archive Date: 06/30/03

DOCKET NO.  02-03 272	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to a compensable disability rating for
residuals, hydrocele.

2.  Entitlement to service connection for a back condition,
claimed as residual of spinal tap.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

Michelle L. Kane, Senior Counsel

INTRODUCTION

The appellant had active military service from October 1972
to February 1974.  He also had a period of service from
February 1978 to May 1979, for which he received a discharge
under other than honorable conditions.  In a June 1999
administrative decision, it was determined that the character
of his military service from February 1978 to May 1979 does
not entitle him to receive VA benefits based on any disease
or injury incurred during that period of service.  The
appellant did not appeal that administrative decision, and it
is final.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied these claims.

The Board notes that the claim for service connection for a
back condition was previously denied in a July 1999 rating
decision, which the appellant did not appeal.  In general, to
reopen a claim which has been previously denied and which is
final, the claimant must present new and material evidence.
38 U.S.C.A. � 5108.  However, under the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), VA was given the authority to readjudicate a
claim denied as not well grounded within a certain time
period.  See section 7 of the VCAA, 114 Stat. 2099.  The
appellant's back claim meets the statutory criteria for
readjudication, as the RO noted in January 2002 statement of
the case (SOC), so new and material evidence is not needed.

REMAND

Notwithstanding the efforts undertaken by the RO to prepare
this case for appellate review, the Board finds that a remand
is in order.  The Board will remand the appellant's case to
ensure full and complete compliance with the enhanced duty-
to-notify and duty-to-assist provisions enacted by the
Veterans Claims Assistance Act of 20000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (the VCAA) [codified as amended at
38 U.S.C. �� 5102, 5103, 5103A, 5107 (West 2002)], as the
claims were pending as of the date of passage of this law,
November 9, 2000.  Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991) (where law/regulation changes after claim has been
filed, but before administrative or judicial appeal process
has concluded, version most favorable to claimant should
apply).

Recent decisions by the U.S. Court of Appeals for Veterans
Claims have mandated that VA ensure strict compliance with
the provisions of the VCAA.  See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  It cannot be said, in
this case, that there has been such compliance when the RO at
no time sent a VCAA letter to the appellant notifying him of
what was needed to substantiate the claims, what his
responsibilities were with respect to the claims, and whether
VA would assist him in any manner.  Furthermore, he was not
provided notice of the VCAA or the implementing regulation.
Pursuant to authority granted by granted by 38 C.F.R. �
19.9(a)(2), the Board attempted to corrected this procedural
deficiency by sending the appellant a VCAA notification
letter in March 2003.  That regulation was recently
invalidated, in part, by the Federal Circuit.  See Disabled
American Veterans, et. al. v. Secretary of Veterans Affairs
(DAV), Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003).

For these reasons, the Board is constrained to remand this
case for compliance with the notice and duty to assist
provisions contained in this law and to ensure the appellant
has had full due process of law.

Accordingly, the case is REMANDED for the following action:

1.  The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000), is completed.  In particular, the
RO should ensure that the notification
requirements and development procedures
codified at 38 U.S.C.A. �� 5102, 5103,
5103A, and 5107, and the duty-to-assist
regulations, found at 66 Fed. Reg.
45,620-32 (Aug. 27, 2001), are fully
complied with and satisfied.  The RO
should also notify the appellant of what
evidence, if any, the veteran is to
submit and what evidence VA will obtain.
See Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).  Any notice given, or
action taken thereafter by the RO, must
comply with the holdings of Disabled
American Veterans, et. al. v. Secretary
of Veterans Affairs, Nos. 02-7304, -7305,
-7316 (Fed. Cir. May 1, 2003).

2.  Upon completion of the above, the RO
should thoroughly review the claims file
and take all other proper measures to
ensure full and complete compliance with
the duty-to-notify and duty-to-assist
provisions of the VCAA that are
specifically germane to the claims on
appeal.  After obtaining any evidence
identified by the appellant or allowing
him an appropriate response period, the
RO should then readjudicate the claims.
If any benefit sought on appeal remains
denied, the appellant and his
representative should be provided with a
supplemental statement of the case
(SSOC).  An appropriate period of time
should be allowed for response.

Thereafter, the case should be returned to this Board for
further appellate review, if in order.  The purpose of this
remand is to comply with governing adjudicative procedures.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition of the remanded issues.  The
appellant has the right to submit

additional evidence and argument on the matters the Board has
remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369
(1999).  No action is required of the appellant until further
notice.

_________________________________________________
	S. L. KENNEDY
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


judge_norm: R GARVIN

text: Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). [is remanded]

text:
Citation Nr: 0315000
Decision Date: 07/07/03    Archive Date: 07/10/03

DOCKET NO.  96-46 368	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bipolar disorder.

REPRESENTATION

Appellant represented by:	Jeffrey Wood, Esq.

ATTORNEY FOR THE BOARD

R. Acosta, Counsel

REMAND

On July 29, 2002, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

The RO should again review the record.
If any benefit sought on appeal remains
denied, the appellant and his private
attorney should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

	R. GARVIN
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


text:
Citation Nr: 0317000
Decision Date: 07/22/03    Archive Date: 07/31/03

DOCKET NO.  93-26 955	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for enuresis.

REPRESENTATION

Appellant represented by:	Kenneth Mason, Attorney at Law

ATTORNEY FOR THE BOARD

G. Strommen, Counsel

REMAND

On February 21, 2002, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

The RO should again review the record.
If any benefit sought on appeal, for
which a notice of disagreement has been
filed, remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.  The appellant has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

	R. GARVIN
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


text:
Citation Nr: 0318000
Decision Date: 07/28/03    Archive Date: 08/05/03

DOCKET NO.  97-08 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to service connection for tinnitus.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel

REMAND

On April 14, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

1.  Ascertain the veteran's correct
current address.  Then make arrangements
with the appropriate VA medical facility
for the veteran to be afforded an ear,
nose and throat (ENT) examination (with
the veteran notified of the scheduling at
his correct current address).  Send the
claims folder to the examiner for review.
The examining physician should determine
the etiology of the veteran's tinnitus,
specifically opining whether it is at
least as likely as not that the veteran's
tinnitus is related to his active
military service or to his service-
connected hearing loss.  The examiner
should explain the rationale for any
opinion given.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

	R. GARVIN
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


text:
Citation Nr: 0321000
Decision Date: 08/21/03    Archive Date: 09/02/03

DOCKET NO.  02-05 056	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for an eye disorder
claimed as secondary to an undiagnosed illness.

2.  Entitlement to service connection for an undiagnosed
illness manifested by chronic chest pain, weakness, fatigue,
anger, nervousness, crying spells, and memory problems.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

J. Kang, Associate Counsel

REMAND

On April 1, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

1.  Make arrangements with the appropriate
VA medical facilities for the veteran to
be afforded the following examinations:
ophthalmologic and internal medicine
evaluations in order to determine the
current nature of any acquired eye
disorder and the veteran's alleged
undiagnosed illness manifested by chronic
chest pain, weakness, fatigue, anger,
nervousness, crying spells, and memory
problems.  All indicated tests and studies
should be accomplished and the findings
then reported in detail.  If a chronic
acquired eye disorder is diagnosed, the
ophthalmologic examiner should advance an
opinion as to (1) whether it is at least
as likely as not that the identified eye
disorder was initially manifested or
otherwise originated during the veteran's
periods of active duty including his
service in the Persian Gulf or, if not,
(2) whether the identified eye disability
is etiologically related to his inservice
right eye complaints.  If an undiagnosed
illness or a medically unexplained chronic
multi-symptom illness is identified, the
internal medicine examiner should
specifically state for the record the
objective findings of such an illness.
Send the claims folders to the examiners
for review.

2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

	R. Garvin
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).


text:
Citation Nr: 0322000
Decision Date: 09/02/03    Archive Date: 09/08/03

DOCKET NO.  97-06 322	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Jane Kang, Associate Counsel

REMAND

On January 28, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case.  Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision.  See 38
C.F.R. � 19.9(a)(2) (2002).

However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. � 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV").  The Federal Circuit held that 38
C.F.R. � 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. � 20.1304, was inconsistent with 38
U.S.C. � 7104(a), because 38 C.F.R. � 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.

Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA).  VAOPGCPREC 1-03.  Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions.  In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. �� 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.

In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the
following:

1.  Repeated efforts by the RO to obtain
service medical and personnel records
from NPRC (address code 13) and ARPERCEN
(address code 11) have yielded only
receipt of the veteran's dental records
in May 1996.  In March 2000, the RO was
informed by the U.S. Army Reserve
Personnel Command that a request should
be made to the National Archives and
Records Administration (NARA), Attn:
Army Correspondence, 9800 Page Avenue,
St. Louis, MO  63132-5100.
The U.S. Army Reserve Personnel Command
also stated that its records indicated
that the veteran is assigned to an USAR
unit "since 4-28-81" and suggested that
the veteran provide the unit name and
address and that the request for records
be made to the unit.  However, the DD
Form 214 indicates that the terminal
date of the veteran's reserve obligation
was 8-19-81, and in May 1999 the veteran
completed NA Form 13075, indicating that
he had never served in the reserves or
national guard.
(1) Contact the appropriate State
or Federal agency and obtain
service medical records and service
personnel records, including DA
Form 20 and/or the "201" file.
The desired records relate to
active duty performed in the U.S.
Army during the period of August
1975 to August 1979.  If no such
service personnel records can be
found, or if they have been
destroyed, ask for specific
confirmation of that fact.
2.  After the development requested above
has been completed to the extent
possible, the RO should again review the
record.  If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West 2002) (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.

	R. GARVIN
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2002).