judge_norm: MICHAEL D LYON

text:
Citation Nr: 0101001
Decision Date: 01/16/01    Archive Date: 01/24/01

DOCKET NO.  98-18 866	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral plantar
callosities.

REPRESENTATION

Appellant represented by:	James W. Stanley, Jr.,
Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. L. Tiedeman, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1969 to May 1971.

This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the North Little
Rock, Arkansas, Department of Veterans Affairs (VA) Regional
Office (RO).

In November 2000, a Travel Board hearing was held before the
undersigned Board Member at the RO.  Additionally, in March
1999, a personal hearing was held at the Regional Office.
Transcripts of these hearings have been associated with the
claims file.

REMAND

The Board notes that there has been a significant change in
the law during the pendency of this appeal.  Specifically,
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000), among other things, redefines the
obligations of the Department of Veterans Affairs (VA) with
respect to the duty to assist.  Due to this change in the
law, a remand is required in this case for compliance with
the notice and duty to assist provisions contained in the new
law.  See Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, �� 3-4, 114 Stat. 2096, ___ (2000) (to be codified
as amended at 38 U.S.C.A. �� 5102, 5103, 5103A, and 5107).

Specifically, the appellant testified at his videoconference
hearing that he had been treated twice at the VA Medical
Center in North Little Rock, Arkansas.  However, these
records have not been associated with the claims file.  The
appellant also indicated that he underwent four separate foot
operations in 1987, 1988, 1989 and 1990.  The only record of
these surgeries that appear to be in the claims folder is
that from Dr. R. M. Drisko, M.D., who performed the
operation.  At his November 2000 videoconference hearing, the
appellant's representative suggested that the outstanding
records may have been sent to the Railroad Retirement Board.
The appellant also mentioned having received treatment from a
family physician prior to service and from private physicians
Dr. Deacon and Dr. Cunningham, following service.  This
evidence has not been associated with the claims file.

Moreover, the veteran is advised that while the case is on
remand status, he is free to submit additional evidence and
argument.  See Kutscherousky v. West, 12 Vet. App. 369
(1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
Finally, in order to make certain that all records are on
file, while the case is undergoing other development, a
determination should be made as to whether there are any
additional records that should be obtained.

The Board also notes that the appellant was afforded a VA
examination in July 1998.  However, as this examination is
somewhat dated and did not address the question of the
relationship, if any, between the disability and service, a
further examination is warranted under the new law discussed
above.

Accordingly, this case is REMANDED for the following:

1.  The RO should contact the veteran to
determine the names, addresses, and dates
of treatment of any physicians,
hospitals, or treatment centers (private,
VA or military) who have provided him
with relevant treatment for bilateral
plantar callosities, not already
associated with the claims file.
Specifically, after securing the
necessary release, the RO should obtain
medical records, including recent VA
outpatient treatment records from VAMC
North Little Rock; records of 1987 foot
surgery at St. Mary's Hospital in Kansas
City; records of 1988 foot surgery at
Trinity Lutheran Hospital; records of
1989 foot surgery at North Kansas City
Hospital in Kansas City; private medical
records from Dr. Deacon and Dr.
Cunningham; and medical records from the
family physician who treated the
appellant prior to his period of active
service.  If any of the aforementioned
records are unavailable, the RO should
inquire whether any of these records are
in the possession of the Railroad
Retirement Board.  The appellant's
assistance in obtaining pertinent records
should be solicited as needed.  To the
extent there is an attempt to obtain
records that is unsuccessful, the claims
folder should contain documentation of
the attempts made.  The appellant and his
representative should also be informed of
the negative results.  38 C.F.R. � 3.159.

2.  The veteran should then be scheduled
for an appropriate VA examination in
order to determine the nature and
severity of his bilateral plantar
callosities.  Initially, the examiner is
requested to review the claims file,
including all service medical and post-
service medical reports of record and
adequately summarize all of the relevant
history, including relevant treatment and
previous diagnoses regarding the
veteran's neck and back disorders.  After
reviewing the records and examining the
veteran, the examiner is requested to
express an opinion as to the following
questions:

(a)  What is the nature of the veteran's
bilateral plantar callosities?

(b)  What is the apparent/likely etiology
of any disorder found?

(c)  The examiner is requested to
specifically address the relationship, if
any, between the veteran's in-service
treatment and any current bilateral
plantar callosities.

(d)  Does the record establish that the
veteran's currently-diagnosed disorder,
if shown, at least as likely as not was
incurred in or aggravated by military
service?  In responding to this question,
the examiner should indicate the degree
to which the opinion is based upon the
objective findings of record as opposed
to the history provided by the veteran.

The examiner should identify the
information on which he or she based his
or her opinions.  The opinions should
adequately summarize the relevant history
and clinical findings, and provide
detailed explanations as to all medical
conclusions rendered.  If these matters
cannot be medically determined without
resort to mere conjecture, this should be
commented upon by the examiner.

3.  Thereafter, 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 is
completed.  In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
�� 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied.  It should
also be determined if additional
examination is indicated.  If so, it
should be scheduled.  For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions.  Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.

4.  If the benefit sought on appeal
remains denied, the veteran and his
representative should be provided with 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
issues currently on appeal.  An
appropriate period of time should be
allowed for response.

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.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2000) (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.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2000), 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) (2000).


series: legacy

judge_norm: ALAN S PEEVY

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text: The appeal is denied.

text:
Citation Nr: 0102001
Decision Date: 01/25/01    Archive Date: 01/31/01

DOCKET NO.  99-21 917A	)	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 the cause of the
veteran's death.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

David S. Nelson, Associate Counsel

INTRODUCTION

The veteran had active military service from March 1960 to
October 1965.  He died on May [redacted], 1998.  The appellant
is his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in March 1999
by the Manila, Republic of the Philippines, Regional Office
(RO) of the Department of Veterans Affairs (VA).  The
appellant entered notice of disagreement in May 1999, a
statement of the case was issued in August 1999, and a
substantive appeal was received in November 1999.  A personal
hearing was conducted at the RO in November 1999.  The
appellant is unrepresented in this matter.

FINDINGS OF FACT

1.  The veteran's Certificate of Death indicates he died on
May [redacted], 1998, of acute respiratory failure secondary to
asphyxia secondary to aspiration; arteriolosclerotic heart
disease was also noted to have been a condition contributing
to death.

2.  No complaints, findings, or diagnoses of heart disease
were present during service or for many years thereafter.

3.  The only disability which had been service-connected at
the time of the veteran's death was schizophrenia; a 100
percent rating had been effect since 1965.

4.  A service-connected disability was not the immediate or
underlying cause of the veteran's death, nor did a service-
connected disability contribute substantially or materially
to cause death, nor did a service-connected disability
combine to cause death or aid or lend assistance to the
production of death.

CONCLUSION OF LAW

A disability incurred in or aggravated by service did not
cause or contribute to the veteran's death.  38 U.S.C.A. ��
1101, 1110, 1131, 1112, 1310 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 C.F.R. �� 3.303, 3.312 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that, on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
which applies to all pending claims for VA benefits and which
provides, among other things, for assistance to a claimant in
obtaining evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA.  Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, � 3(a),
114 Stat. 2096, 2097-98 (2000) (to be codified as amended at
38 U.S.C. � 5103A).  In the instant case, service medical
records and the veteran's terminal hospitalization records
have been obtained, and the record includes various medical
records over the years.  Under the circumstances, the Board
finds that the record as it stands allows for equitable
appellate review and that there has been substantial
compliance with the provisions of the Veterans Claims
Assistance Act of 2000.  No useful purpose would be served in
this case by delaying appellate review for additional
development.

The Board notes at this point that by rating decision in July
1998, the appellant was awarded DIC benefits under 38
U.S.C.A. � 1318 since a 100 percent rating had been effect
for service-connected schizophrenia for over 10 years.  The
record shows that by rating decision in April 1966, service
connection was established for schizophrenia effective
October 1965.  Under 38 U.S.C.A. � 1318, compensation is
payable to the appellant as if the veteran's death was
service-connected.

At any rate, looking to the service connection for cause of
death issue which is in appellate status, the Board observes
that by law, the death of a veteran will be considered as
having been due to a service-connected disability when the
evidence establishes that such disability was either a
principal or a contributory cause of death.  38 U.S.C.A. �
1310; 38 C.F.R. � 3.312.  A service-connected disability will
be considered as the principal cause of death when such
disability, singly or jointly with some other conditions, was
the immediate or underlying cause of death or was
etiologically related thereto.  A contributory cause of death
is inherently one not related to the principal cause.  In
determining whether the service-connected disability
contributed to the death, it must be shown that it
contributed substantially or materially, that it combined to
cause death or that it aided or lent assistance to the
production of death.  It is not sufficient to show that it
casually shared in producing death, but rather it must be
shown that there was a causal connection.  38 C.F.R. � 3.312
(b)(c).

Service connection may be granted for a disability due to a
disease or injury which was incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.
Service incurrence will be presumed for certain chronic
diseases, including cardiovascular disease, if manifest to a
compensable degree within the year after active service.  38
U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309.

Turning to the record, the Board first notes that while a
Grade I systolic murmur was noted on the veteran's February
1960 service entrance examination, the veteran's heart was
clinically evaluated as normal on his March 1964 reenlistment
examination.  There is nothing in the veteran's service
medical records or post-service medical records to suggest
that heart disease was manifested during service or within
one year of discharge from service.  Service medical records
as well as post-service records do not reveal any
cardiovascular disorders.  For example, VA examinations dated
in November 1965 and October 1966 indicated that there were
no heart murmurs; heart disease was not noted.  There is no
evidence to suggest that heart disease was manifested during
the veteran's military service or within one year of
discharge.  There is also no evidence to show that heart
disease was otherwise related to his service.

Medical records dated in May 1998 indicate that the veteran
was admitted for treatment due to a loss of appetite and a
lack of verbal output.  While in treatment the veteran
underwent cardiopulmonary arrest secondary to asphyxia due to
retained food particles.

The Board acknowledges the appellant's belief in a causal
connection between the veteran's death and his schizophrenia.
However, as the appellant is not a medical expert, she is not
competent to offer an opinion regarding any medical causation
leading to the veteran's death.  See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992).  Based on the foregoing, it is
clear that a service-connected disability (schizophrenia) was
neither the immediate or underlying cause of death or
etiologically related thereto.  Moreover, while a 100 percent
rating was in effect for schizophrenia, there is no evidence
to suggest that a vital organ was effected so as to provide a
basis for a finding that the schizophrenia rendered the
veteran less capable of resisting the effects of other
disease or had a material influence in accelerating death.
The Board therefore also finds that the schizophrenia was not
a contributing factor in the veteran's death.  38 C.F.R.
� 3.312(c).

Because the record fails to demonstrate any medical evidence
of any connection between the veteran's death and any disease
or injury related to his military service, the appellant's
claim of service connection for the cause of the veteran's
death must be denied.  In sum, the Board is compelled to find
that the clear preponderance of the evidence is against
entitlement to service connection for the cause of the
veteran's death.  It follows that there is not such an
approximate balance of the positive evidence and the negative
evidence to otherwise permit a favorable determination.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
� 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as
amended at 38 U.S.C. � 5107).

ORDER

The appeal is denied.

	ALAN S. PEEVY
	Member, Board of Veterans' Appeals


judge_norm: L W TOBIN

benefit: pension

text:
Citation Nr: 0105001
Decision Date: 02/16/01    Archive Date: 02/20/01

DOCKET NO.  95-27 719	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania

THE ISSUE

Whether the veteran's countable income constituted a bar to
receipt of improved disability pension benefits for each 12
month annualization period from September 17, 1985 through
December 1999.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Debbie A. Riffe, Counsel

INTRODUCTION

The veteran served on active duty from May 1966 to March
1968.  This case comes to the Board of Veterans' Appeals
(Board) from an April 1986 RO decision which denied the
veteran's claim for a permanent and total disability rating
for pension purposes.  In an April 1997 decision, the Board
granted that aspect of the pension claim but remanded the
case to the RO for further development regarding whether the
veteran met the income eligibility test for pension.  The
Board again remanded the case to the RO in April 1998 and
April 1999 for development on the pension income question.

FINDING OF FACT

The veteran's countable annual income was in excess of $5,709
for the period from September 17, 1985 through September
1986; $5,886 for the period from October 1986 through
September 1987; $5,963 for the period from October 1987
through September 1988; $6,214 for the period from October
1988 through September 1989; $6,463 for the period from
October 1989 through September 1990; $6,767 for the period
from October 1990 through September 1991; $7,133 for the
period from October 1991 through September 1992; $7,397 for
the period from October 1992 through September 1993; $7,619
for the period from October 1993 through September 1994;
$7,818 for the period from October 1994 through September
1995; $8,037 for the calendar year from January 1, 1995
through December 1995; $8,246 for the 1996 calendar year;
$8,486 for the 1997 calendar year; $8,665 for the 1998
calendar year; and $8,778 for the 1999 calendar year.

CONCLUSION OF LAW

The veteran's countable income is excessive for receipt of
improved pension benefits for each 12 month annualization
period from September 17, 1985 through December 1999.  38
U.S.C.A. �� 1503, 1521 (West 1991); 38 C.F.R. �� 3.3, 3.23,
3.271, 3.272, 3.273 (2000).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

On a September 1985 application for VA pension (for a veteran
with no dependents), the veteran reported that his only
income consisted of workmen's disability compensation in the
amount of $715.72 a month and that by the end of 1985 he
expected his payments would total $8,588.64.  He also noted
he applied for Social Security benefits.

In an April 1986 decision, the RO denied the veteran's claim
of entitlement to a permanent and total disability rating for
pension purposes, after consideration of the medical evidence
of record.  (The question of a claimant's eligibility for
payments of pension benefits based on countable annual income
does not arise until after he is found to be permanently and
totally disabled for pension purposes.)

In a February 1995 letter, the Social Security Administration
(SSA) informed the veteran that his monthly Social Security
payment from January 1994 to November 1994 was $587 and
effective from December 1994 was $603.

On a February 1995 application for VA pension, the veteran
reported he received $603 monthly in Social Security benefits
which began in 1985 and $416.01 monthly in disability
retirement benefits which began in 1986.

In an August 1995 letter, the RO notified the veteran that
his claim for non-service-connected disability pension was
denied on the basis that his annual income from Social
Security and disability retirement benefits exceeded the
$8,037 pension income limit set by law.  (The RO's decision
was made solely on the basis of
whether the veteran met income criteria for pension payment
purposes, without determining in the first instance whether
he was entitled to a permanent and total disability rating
for pension purposes.)

In September 1996, the veteran submitted information
regarding his income from 1985.  Computer-generated records
from the SSA reflect that he received the following benefit
payments:  $4,295 in 1985, $5,258 in 1986, $5,383.10 in 1987,
$5,546.90 in 1988, $5,826 in 1989, $6,102 in 1990, $5,567 in
1991, $7,454 in 1992, $6,300 in 1993, $7,044.30 in 1994, and
$7,236 in 1995.  It was also indicated he received $619
monthly in 1996.  A letter from the State Employees
Retirement System indicates the veteran had been receiving
monthly pension of $416.01 since November 1985.  An agreement
dated in October 1984 from the Bureau of Workmen's
Compensation reflects that effective from September 1984 the
veteran would be paid $178.93 weekly for an indefinite
period.  The veteran also completed numerous Improved Pension
Eligibility Verification Reports (EVRs) on which he indicated
his income from 1985 to 1996 (his reported income figures
were copied from the information furnished by the income
sources).  The veteran also reported his workmen's
compensation payments were discontinued in October 1991.

In a September 1996 letter, the RO notified the veteran that
his claim for non-service-connected disability pension was
denied on the basis that his annual income from Social
Security, state retirement, and workmen's compensation
benefits exceeded the pension income limit set by law.  (The
RO's decision was made solely on the basis of whether the
veteran met income criteria for pension payment purposes,
without determining in the first instance whether he was
entitled to a permanent and total disability rating for
pension purposes.)

In an April 1997 decision, the Board granted the veteran's
claim of entitlement to a permanent and total disability
rating for pension purposes and remanded the case to the RO
for further development to establish whether the veteran's
income is excessive for purposes of payment of improved
pension benefits.

On an EVR dated in May 1997, the veteran reported that for
the period of 1996 and 1997 he received $637 monthly in
Social Security benefits and $416.01 monthly in state
retirement disability benefits.  In a medical expense report
dated in May 1997, he indicated he paid $176 for visits to
the doctor in 1996 and 1997.  A report obtained from
Findley's Pharmacy covering the period of January 1996 to May
1997 reflects that he paid $577.10 in prescription
medication.

In June 1997, the veteran submitted a statement from his
doctor, Robert Jacobs, M.D., who indicated the veteran was in
treatment for chronic anxiety and depressive reactions and
was on medication for his condition.  The veteran also
submitted an accounting of charges by and payments to Jacobs
Associates for the period of January 1995 to June 1997.  The
accounting reflects he paid $184.

In a July 1998 letter, the RO notified the veteran that the
effective date of his entitlement to a permanent and total
disability rating for pension purposes is September 17, 1985.
The RO requested him to verify his reported income from 1985
through 1996, to furnish his income for 1997 and 1998, and to
complete medical expense reports for medical expenses he paid
without reimbursement from 1985 to the present.

In September 1999 statements, the veteran asserted that since
November 1991 his income had decreased by approximately $400
a month.  He stated that his present medical conditions have
been exacerbated and that he was living on $1,115.67 a month
which did not cover all his bills and living expenses.  He
also advised that he was not requesting reimbursement for
medical expenses at that time.  With his statements, he
submitted numerous EVRs on which he indicated his income from
1985 to 1999.  These are largely duplicative of his previous
income reports except for his Social Security income, which
he reported was $160 monthly from September 1985 through
September 1991, $512 monthly from October 1991 through
September 1993, $602 monthly from October 1993 through
September 1995, and $638 monthly from January 1995 through
December 1996.  For 1996 through 1998, he reported total
monthly income of $638 from Social Security and $416 in state
retirement.  For 1999, he reported total monthly income of
$658 from Social Security and $457 from state retirement.  He
did not report any medical expenses for the period of 1985 to
1999.

In a September 2000 letter, the RO notified the veteran that
he was not entitled to payment of non-service-connected
disability pension on the basis that his countable income
dating from September 1985 to the present exceeded the annual
income limitation established by law.  The RO stated that
although it did not consider the veteran's unreimbursed
medical expenses, as requested by him, he would have require
a substantial amount of such expenses in order to bring his
income within the limitations.

II.  Analysis

The Board is satisfied that all relevant evidence has been
properly developed in this case and that no further
assistance is required to comply with the duty to assist.
38 U.S.C.A. � 5103A, as added by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000).

Non-service-connected improved pension is a benefit payable
by the VA to veterans of a period of war because of permanent
and total disability.  Income eligibility for pension, and
the amount of any pension payable, is determined by
subtracting the veteran's countable annual income from the
maximum annual pension rate.  The maximum annual pension rate
is adjusted from year to year; the maximum annual rate of
improved pension for a veteran is $5,709 (effective from
December 1984), $5,886 (effective from December 1985), $5,963
(effective from December 1986), $6,214 (effective from
December 1987), $6,463 (effective from December 1988), $6,767
(effective from December 1989), $7,133 (effective from
December 1990), $7,397 (effective from December 1991), $7,619
(effective from December 1992), $7,818 (effective from
December 1993), $8,037 (effective from December 1994), $8,246
(effective from December 1995), $8,486 (effective from
December 1996), $8,665 (effective from December 1997), and
$8,778 (effective from December 1998).  In determining the
veteran's countable annual income, payments of any kind from
any source shall be counted as income during the 12-month
annualization period in which received unless specifically
excluded.  Social Security benefits are included as income.
38 U.S.C.A. �� 1503, 1521; 38 C.F.R. �� 3.3, 3.23, 3.271,
3.272, 3.273.  Medical expenses in excess of 5 percent of the
maximum annual pension rate may be excluded from an
individual's income for the same 12-month period to the
extent they were unreimbursed.  38 C.F.R. � 3.272(g).

In this case, the veteran's application for VA pension
benefits was received on September 17, 1985.  That date is
the commencing date for the 12 month annualization periods
for calculating his income.  All of his income reportedly
stems from Social Security benefits, state retirement
benefits, and workmen's compensation benefits, which are not
excluded under 38 C.F.R. � 3.272.  A review of the record
shows his annual income from these sources (the state
workmen's compensation benefits were terminated in October
1991) was $11,484 for each 12 month annualization period from
September 17, 1985 through September 1991; $11,136 for the
period October 1, 1991 through September 1992; $11,136 for
the period October 1, 1992 through September 1993; $12,216
for the period October 1, 1993 through September 1994;
$12,648 for each calendar year from January 1, 1995 through
December 1998 (the VA began to standardize the income
reporting period to the calendar year beginning in 1995); and
$13,380 for the calendar year of 1999.  (These income figures
were calculated using the veteran's reported income from his
latest EVRs submitted in September 1999; the Board notes that
it appears from these EVRs he has underreported his Social
Security income for the period of September 1985 through
September 1991.)  This income is clearly excessive for
receipt of pension for each 12 month annualization period
from September 17, 1985 through December 1999.  However, the
income must be reduced by any unreimbursed medical expenses
to determine if the veteran's countable income is excessive.

In regard to exclusions from income, the veteran reported
medical expenses of $176 total for doctor visits in 1996 and
1997.  Pharmacy records show he paid $577.10 for his
prescription medicines from January 1996 through May 1997.
Also, a medical bill from his doctor indicates he paid $184
total from January 1995 to June 1997.  Five percent of the
maximum annual pension rate of $8,037 (effective from
December 1994) is $402; of $8,246 (effective from December
1995) is $412; and of $8,486 (effective from December 1996)
is $424.  The Board notes that the duty to assist is not a
one-way street.  Wood v. Derwinski, 1 Vet.App. 190 (1991).
Pursuant to the Board's remands, the veteran was provided an
opportunity to submit a more complete and accurate list of
unreimbursed medical expenses for the annualization periods
in question, September 17, 1985 through December 1999, but he
responded in September 1999 that he was not seeking
reimbursement for any medical expenses.  Nevertheless, the
Board, in an effort to review the evidence of record in a way
most favorable to the veteran's claim, will consider the
payments for private doctor visits and prescription medicine,
made in 1995, 1996, and 1997.  In that regard, it is not
entirely clear during which 12 month annualization period the
veteran made all of these payments, the total of which
amounts to $937 ($176 + $577 + $184).  Nonetheless, even when
five percent of the maximum annual pension rate ($402, $412,
or $424) is subtracted from $937, and the resultant amount of
unreimbursed medical expenses is subtracted from the
veteran's income for 1995, 1996, and 1997, the veteran's
countable annual income (i.e., his total income minus any
calculated unreimbursed medical expenses) would still far
exceed the maximum annual pension rate for those years.

It is clear from the record that the veteran's countable
annual income for each annualization period is far in excess
of the maximum annual pension rate for payment of benefits.
Accordingly, the Board must find that the veteran's countable
income is a bar to receipt of improved pension benefits.
There is no interpretation of the facts of this case which
will support a legal basis for favorable action with regard
to his claim.  Since the law is dispositive, the claim must
be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The
Board notes that if significant changes arise in the
veteran's countable income, he may again submit a claim, with
updated income information, in an effort to receive VA
pension benefits.

ORDER

VA improved pension benefits are denied.

	L. W. TOBIN
	Member, Board of Veterans' Appeals


judge_norm: A BRYANT

disposition: remanded

text: Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded [is remanded]

text:
Citation Nr: 0106001
Decision Date: 02/28/01    Archive Date: 03/02/01

DOCKET NO.  99-14 160	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

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

WITNESSES AT HEARING ON APPEAL

Appellant and D. P.

ATTORNEY FOR THE BOARD

T. S. Tierney, Counsel

INTRODUCTION

The veteran had active military service from February 1942 to
April 1946.  He died in February 1999.  The appellant is the
surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which denied the claim for service
connection for the cause of death on the basis that the claim
was not well grounded.

A personal hearing was held in November 2000 in Washington,
D. C., before the undersigned Board Member.  The appellant
and D. P., the veteran's daughter, testified.  A transcript
of that hearing has been associated with the record on
appeal.

The Board notes that the appellant has raised the additional
issue of entitlement to Dependents' Indemnity Compensation
(DIC) under 38 U.S.C.A. � 1318.  The issue was not certified
to the Board on appeal and the RO has not adjudicated the
issue.  Accordingly, this issue is referred to the RO for the
appropriate action.

REMAND

Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal.  On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).  Among other things, this law eliminates the
concept of a well-grounded

claim, redefines the obligations of the VA with respect to
the duty to assist, and supersedes the decision of the United
States Court of Appeals for Veterans Claims (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 cannot assist in
the development of a claim that is not well grounded.  This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date.  Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, � 7, subpart (a), 114 Stat. 2096,
2099-2100 (2000).  See also Karnas v. Derwinski, 1 Vet. App.
308 (1991).

Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, �� 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. �� 5102, 5103, 5103A, and 5107).  In addition, because
the RO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, 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)).
Therefore, for these reasons, a remand is required.

At the time of the veteran's death, he was in receipt of
service connection for residuals of shrapnel wounds of the
right leg, with multiple scars, compound comminuted fracture
of the right tibia and fibula, astragalus and fifth
metatarsal bone and limitation of motion of the right ankle
requiring a brace.  A 100 percent rating had been assigned
from May 1, 1946, through October 10, 1946, and a 40 percent
rating had been in effect from October 11, 1946.  Service
connection had also been granted for moderate scars, shrapnel
wounds involving the muscle of the

right posterior pelvic group, XVII.  It was noted that the
initial rating for this disability had been included in the
100 percent rating for the above disability from May 1, 1946
through October 10, 1946.  Thereafter, a 20 percent rating
had been assigned from October 11, 1946.  Service connection
had been granted for moderate scars, shrapnel wounds
involving the muscle of the right anterior thigh group XIV.
The initial rating for this disability had been included in
the initial 100 percent rating, and then a 10 percent rating
was assigned from October 11, 1946.  In addition, service
connection had been granted for residuals of a gunshot wound
to the right arm.  It was noted that this disability was
covered by the 100 percent rating from May 1 to October 10,
1946.  Thereafter, a 10 percent rating was assigned for this
disability.  Service connection was also granted for tender
scars, shrapnel wounds of the left foot.  The rating for this
disability was covered by the initial 100 percent rating.  A
10 percent rating was assigned from October 11, 1946.

The veteran died on February [redacted], 1999.  According to the
Certificate of Death, the immediate cause of death was
cardiopulmonary arrest due to or as a consequence of
atherosclerotic heart disease.  It was further noted that
other significant conditions contributing to death but not
related to the cause of death was sepsis.

While the case was on appeal to the Board, the appellant
submitted additional evidence.  Although the appellant also
submitted a written waiver of RO review of the additional
evidence, on remand, the RO must consider this evidence in
its readjudication of the claim.  The Board notes that at the
hearing in November 2000, the veteran's daughter testified
that she was a registered nurse.  In addition, she submitted
a written statement, received in December 2000, providing her
medical opinion that the veteran's death in February 1999
"was expedited by the infection in his right foot."  She
further noted that the infection in the service-connected
right foot "traveled systemically through [sic] his body and
caused the systemic infection called sepsis, which is listed
as a contributory factor on his death certificate.
Similarly, this is verified by the medical records and
evidence submitted . . . to

establish a causal link between the demise of the veteran and
the continuance of service connected disability."  Although
the veteran's daughter has a personal interest in this case,
she is a registered nurse and the VA is not allowed to ignore
her medical opinion.  See Pond v. West, 12 Vet. App. 341
(1999) (the appellant, a licensed chiropractor and a medical
professional, was competent to provide medical nexus evidence
and the Board was not free to ignore his opinion).  In light
of this evidence, the RO should arrange for a physician with
knowledge of sepsis to review the evidence and provide a
medical opinion as to whether any service-connected
disability caused or contributed to the cause of death of the
veteran.

Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following
development:

1.  The RO should arrange for an
appropriate specialist with knowledge in
the area of sepsis to review the veteran's
claims file and render an opinion as to
whether any of the veteran's service-
connected disabilities caused or
contributed to the cause of his death.
The specialist should note the evidence
which supports the medical opinion
rendered.  The factors upon which the
opinions are based must be indicated.

2.  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 is completed.  In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.  For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions.  Any binding and pertinent court
decisions that are subsequently issued
also should be considered.  If the benefit
sought on appeal remains denied, the
appellant and the appellant's
representative, if any, should be provided
with 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.

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 RO.  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 or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner.  See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
� 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. � 5101 (West
Supp. 2000) (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.

	A. BRYANT
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2000), 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) (2000).


judge_norm: RICHARD V CHAMBERLAIN

condition: back

text:
Citation Nr: 0107001
Decision Date: 03/08/01    Archive Date: 03/16/01

DOCKET NO.  96-03 326	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland

THE ISSUE

Whether new and material evidence has been submitted to
reopen claims of entitlement to service connection for low
back and cervical spine (neck) disorders.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

R. E. Smith, Counsel

INTRODUCTION

The veteran had active military service from April 1967 to
June 1967 and from June 1972 to February 1975.  He has also
served in the National Guard.

This appeal initially arose from an August 1995 rating
decision by the Baltimore, Maryland Regional Office (RO) of
the Department of Veterans Affairs (VA), which found that new
and material evidence had not been presented to reopen claims
seeking entitlement to service connection for low back and
neck disorders.

In a decision dated in March 1998 the Board of Veterans'
Appeals (Board) denied the veteran's attempt to reopen his
claim; he thereafter appealed that determination to the
United States Court of Appeals for Veterans Claims (Court).
In a November 1998 order, the Court vacated the Board's March
1998 decision and remanded the case for compliance with a
motion for remand from the appellee (VA Secretary).  The
motion for remand requested consideration of the claim to
apply the provisions of 38 C.F.R. � 3.156(a) as held in
Hodge v. West, 155 F.3d. 1356 (Fed.Cir. 1998).  In June 1999
the Board remanded the case to the RO for additional
development.  Following accomplishment of that development
the RO, in January 2001, returned the case to the Board for
further appellate consideration.

The veteran in a statement received in August 1999 indicates
that he is seeking to reopen a previously denied claim of
entitlement to payment or reimbursement for medical expenses
incurred in connection with unauthorized medical treatment
rendered at Anne Arundel Hospital on August 17, 1998.  The
RO's attention is directed to the veteran's statement for
action deemed appropriate.

FINDINGS OF FACT

1.  Service connection for low back and cervical spine
disorders was denied by the RO in an unappealed rating action
dated in February 1991.  The veteran was notified of that
decision and did not file a notice of disagreement therewith.

2.  Evidence submitted since the February 1991 rating action
consists of lay statements and clinical data which are either
cumulative of evidence already of record or are not of such
significance that they must be considered in connection with
all the evidence to fairly decide the merits of the veteran's
claim for service connection for low back and cervical spine
disorders.

CONCLUSION OF LAW

Evidence received since the February 1991 rating decision
denying service connection for low back and cervical spine
disorders is not new and material and the claims as to these
disorders are not reopened; the February 1991 RO rating
determination is final.  38 U.S.C.A. �� 5108, 7105 (West
1991); 38 C.F.R. �� 3.104(a), 3.156(a) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that he has low back and neck disorders
attributable to injuries he sustained as a result of falls he
has experienced due to his service-connected seizure
disorder.  He maintains, in essence, that he is entitled to
service connection for residuals of his low back and neck
injuries as he has submitted evidence that is new and
material as to these issues, warranting the reopening of his
claims and allowance of the benefits sought.

In a decision by the RO, dated in February 1991, entitlement
to service connection for low back and cervical spine
disorders was denied.  In reaching that decision, the RO
considered the complete record upon the merits and noted that
the evidence then of record showed no support for the
veteran's claims that these disorders were caused by falls
related to a service-connected seizure disorder and, further,
that his assertions, with respect to his low back disorder,
were, in fact, contraindicated by the evidence.  The veteran
did not appeal this determination.  Under the appropriate
laws and regulations this prior determination is final and
the veteran's claims as to service connection for low back
and cervical spine disorders may not be reopened absent the
submission of new and material evidence.  Specifically, the
law and regulations provide that if new and material evidence
has been presented or secured with respect to a claim, which
has been disallowed, the claim must be reopened and the
former disposition reviewed.  38 U.S.C.A. �� 5108, 7105;
38 C.F.R. � 3.156(a).

As defined by regulation, new and material evidence means
evidence not previously submitted to agency decisionmakers,
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with the
evidence previously assembled is so significant that it must
be considered in order to fairly decide the merits of the
claim.  38 C.F.R. � 3.156(a).  In addition, for the purposes
of determining whether a case should be reopened the
credibility of the evidence added to the record is to be
presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
There is no requirement, however, that in order to reopen a
claim, that the new evidence when viewed in the context of
all the evidence, both new and old create a reasonable
possibility that the outcome of the case on the merits would
be changed.  Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998)
(expressly rejecting the standard for determining whether new
and material evidence had been submitted sufficient to reopen
a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171
(1991)).

Thus, in considering whether a claim may be reopened the
Board must first determine whether the newly received
evidence is both new and material.  If the Board determines
that the claimant has produced new and material evidence, the
claim is deemed to have been reopened and the case must then
be evaluated on the basis of all the evidence of record both
new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145
(1991).

The first step in the two-step analysis involves two
questions:  (1) Is the newly presented evidence "new," that
is, not previously submitted to agency decisionmakers and not
cumulative or redundant; and (2) is the newly presented
evidence "material," that is, does it bear directly and
substantially upon the specific matter under consideration,
and is it so significant that it must be considered in order
to fairly decide the merits of the claims.

The Court has held that in order to reopen a previously and
finally disallowed claim, there must be new and material
evidence presented or secured since the last time the claim
was finally disallowed by any basis.  See Smith v. West,
12 Vet. App. 312, 314 (1999).  Therefore, in the present
case, the Board in determining whether the veteran's claim is
reopened, must review, in light of the applicable laws and
regulations in Court cases regarding finality, all the
evidence submitted since the RO's rating decision in February
1991.  However, prior to this review, the Board will first
discuss the evidence that was before the RO in February 1991
for purposes of clarity.  This evidence included the
veteran's service medical records which were negative for any
complaints and/or findings of low back and/or neck disorders,
exclusive of a May 1976 report of injury to the low back,
which was incurred while the veteran was performing duty with
the National Guard.  This report noted that, while riding in
the back of a military 2 1/2-ton vehicle, the veteran was
thrown to the bed of the truck causing him to hit his back
against the seat.  The veteran was found by a physician at
the Submarine Medical Center in Groton, Connecticut, to have
suffered a low back strain with abrasions.

Evidence before the RO in 1991 also included VA clinical
records which show that in September 1987, the veteran
presented to a VA orthopedic clinic with complaints of neck
and back pain since his involvement in a motor vehicle
accident approximately one year earlier.  Examination found
no spinal tenderness but did reveal decreased range of motion
in flexion and extension.  It was recorded that "old films"
revealed possible sclerosis of the cervical spine but no
specific findings.  Chronic low back pain was recorded as a
secondary diagnosis during a period of VA hospitalization,
beginning in September 1989.  A statement from a VA physician
that same month recorded that the veteran, at that time,
suffered from chronic neck and back pain and that magnetic
resonance imaging scans had revealed a mild disc herniation
at C6-C7 and mild early arthritic changes involving the
lumbar spine.

An October 1990 VA orthopedic consultation noted as a
diagnostic impression that the veteran had a herniated
nucleus pulposus, C6-7, with neck pain in the interscapular
and trapezius muscle areas.  It was also noted on this
consultation that the veteran had low back pain for which he
could not recall the exact etiology but believed was
secondary to recurrent seizures and falling.  X-rays of the
cervical spine showed evidence of arthritic changes.  X-rays
of the lumbosacral spine identified no gross irregularity.

Health records maintained by the veteran's then employer, the
United States Postal Service, and compiled between November
1986 and April 1989 noted the veteran's complaints of neck
pain related to an automobile accident in February 1988 as
well as his treatment for neck and back discomfort.  An April
1989 United States Postal Service letter to the veteran
indicated that a low back disorder limited the amount of
weight he could lift and the amount of time he could stand or
sit.

Evidence of record, in February 1991, also included testimony
elicited from the veteran at an April 1990 personal hearing
before a hearing officer at the RO to the effect that he had
a neck disorder caused by his service-connected seizures.
Also of record were private clinical progress notes showing
treatment provided to the veteran by clinicians at
St. Raphael Hospital for complaints of chronic neck and low
back pain.

On this evidentiary record, as noted above, the RO in
February 1991 concluded that the veteran's low back and
cervical spine disorders were not attributable to service on
any basis.

In connection with his claims to reopen, filed in September
1994, the Board notes that evidence associated with the
record that is not duplicative of previously considered
evidence includes VA outpatient treatment records complied
between April and June 1991 and VA outpatient treatment
records compiled between November 1997 and January 2000.
Additionally on file are reports of VA examinations provided
to the veteran in July 1992 and December 1993 as well as an
undated statement from a VA physician identifying the
veteran's current disabling problems.  Also on file are
private clinical data compiled from the late 1980's, a
statement from the veteran's private physician dated in
February 1987, and statements from three former co-workers of
the veteran, two dated in May 1988 and one undated.

The VA clinical data shows that the veteran was provided
Motrin for his low back pain in early 1988 and was advised to
avoid heavy lifting.  He was evaluated and treated for
complaints of low back pain in May 1991 and found on X-ray of
the lumbosacral spine to have straightening of his normal
lumbar curvature secondary to muscle spasm.  VA examination
in July 1992 recorded the veteran's recent history of seizure
activity and the related objective findings.  On VA
examination in December 1993, the veteran reported that he
averages eight seizures a year and that in one of the
seizures he fell and injured his neck.  Chronic cervical pain
of unknown etiology was the pertinent diagnosis.  In November
1997, the veteran was noted to have complaints of back pain
and evidence of a significant amount of spasm.  In an undated
progress note a VA physician noted upon review of the
veteran's chart that he had problems with cervical
spondyloarthropathy and chronic low back pain.

The private clinical data includes records of treatment
provided to the veteran between January 1987 and August 1989
by clinicians at the St. Raphael Hospital for back and neck
pain following a motor vehicle accident in January 1987 and
for neck pain following a motor vehicle accident in February
1988.  Cervical disc disease was diagnosed in August 1989.
Private clinical data from the Hill Health Center notes
problems with low back pain in August 1991, secondary to a
motor vehicle accident in 1987 and a diagnostic assessment of
chronic neck pain in February 1992.  A medical history
report, dated in September 1991, includes the notation that
the veteran has cervical spine slipped disc secondary to
seizure in 1987.  The veteran's private physician, William
Paley, M.D., in a statement dated in February 1987 observed
that the veteran was being evaluated for chronic neck pain
and that a magnetic resonance image had shown that he has a
central disc herniation.

The lay statements submitted in connection with the claim to
reopen recall episodes at the veteran's job site where the
veteran's seizure activity was witnessed by the authors.

The Board has reviewed the evidence submitted since the
February 1991 decision and has determined that this evidence
is not new and material.  Specifically, we note that the VA
and private clinical evidence submitted merely describes the
veteran's condition in the context of current evaluation and
treatment.  This evidence does not contain any competent
evidence relating any current back or neck disorder to
service or to service-connected seizure disorders.  The Court
has held that additional evidence, which consists of
treatment many years after service that, does not indicate in
any way that the conditions are service connected is not
material.  Cox v. Brown, 5 Vet. App. 95 (1993).  Here we
acknowledge the medical history recorded in September 1991,
to the effect that the veteran had a cervical spine slipped
disc secondary to a 1987 seizure.  This statement which
obviously relied upon the veteran's own account of his
medical history essentially reiterates his previously
considered contentions with respect to the claimed disability
and as such is not considered to be new, so as to reopen a
finally denied claim.  The lay statements detailing the
veteran's on-the-job seizure activity provide no indication
that the veteran's current low back and neck disorders
resulted therefrom and, thus, by themselves are in context of
all the evidence of record both new and old, are neither
relevant nor probative of the issue at hand in this case;
i.e., whether the veteran's current low back and neck
disorders can be related to service.

In sum, the evidence submitted since the RO's February 1991
rating decision is either cumulative of evidence already on
file or is not of such significance that by itself, or in
connection with the evidence previously assembled, it must be
considered in order to further decide the merits of the
veteran's claims.  As there is no additional evidence, which
is both new and material, the claims for entitlement to
service connection for a low back and cervical spine (neck)
disorder are not reopened.

ORDER

New and material evidence not having been received to reopen
the claims for service connection for low back and cervical
spine (neck) disorders, the appeal is denied.

	Richard V. Chamberlain
	Acting Member, Board of Veterans' Appeals


judge_norm: ROBERT P REGAN

disposition: granted

condition: headache

text:
Citation Nr: 0108001
Decision Date: 03/19/01    Archive Date: 03/26/01

DOCKET NO.  99-00 506	)	DATE
	)
	)

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

THE ISSUES

Whether new and material evidence has been submitted to
reopen claims for service connection for residuals of
cerebral vascular accident/subarachnoid hemorrhage with
headaches and hypertension.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Amanda Blackmon, Counsel

INTRODUCTION

The appellant served on active duty from February 1946 to
February 1949, March 1950 to March 1954, and from April 1954
to November 1973.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a October 1997 rating decision, which
determined that the appellant had not presented new and
material evidence sufficient to reopen the previously denied
claims for service connection for headaches, hypertension,
and residuals of cerebral vascular accident/subarachnoid
hemorrhage.

In April 1974. The RO denied service connection for residuals
of a cerebrovascular accident.  The Board finds that this
denial include hypertension and headaches a residuals if the
cerebrovascular accident.

FINDINGS OF FACT

1.  The appellant's claim for service connection for
residuals of cerebral vascular accident was denied by rating
action dated in April 1974.

2.  Evidence added to the record since the unappealed April
1974 decision bears directly and substantially upon the
subject matter now under consideration and, when considered
alone or together with all of the evidence, both old and new,
has a significant effect upon the facts previously
considered.

CONCLUSION OF LAW

Evidence received since the unappealed April 1974 RO
decision, which denied the appellant's claim of entitlement
to service connection for residuals of cerebral vascular
accident, is new and material, and the claim for residuals of
cerebral vascular accident/subarachnoid hemorrhage with
headaches and hypertension is reopened.  38 U.S.C.A. �� 5108,
7105 (West 1991); 38 C.F.R. �� 3.104, 3.156 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be established for disability
resulting from injury or disease incurred in service or for a
preexisting injury or disease that was aggravated by service.
38 U.S.C.A. �� 1110, 1131 (West 1991 & Supp. 2000).  For
veterans who had service of ninety (90) days or more during a
war period or peacetime service after December 31, 1946, and
cardiovascular renal disease, to include hypertension, or
brain hemorrhage is manifest to a compensable degree within a
year thereafter, there is a rebuttable presumption of service
origin, absent affirmative evidence to the contrary, even if
there is no evidence thereof during service.  38 U.S.C.A.
�� 1101, 1110, 1112, 1113, 1131, 1137 (West 1991& Supp.
2000); 38 C.F.R. �� 3.307, 3.309 (2000).

Service connection may also be granted for a disease which
was diagnosed after discharge from military service, when the
evidence establishes that such disease was incurred in
service.  38 C.F.R. � 3.303(d) (2000).

The evidence of record at the time of the April 1994 decision
by the RO is briefly summarized.  The service medical records
show that the appellant was hospitalized in February 1973.
Following a complete diagnostic work-up, the appellant
underwent an arteriogram.  A final diagnosis of subarachnoid
hemorrhage, and hypertension of uncertain etiology was noted.
The hospital report also noted that the appellant presented
with complaints of headaches.  The appellant was transferred
to another medical facility in late February 1973.  That
medical report referenced a final diagnosis of suspect
subarachnoid hemorrhage, unproven, etiology unknown, and
transient left hemiparesis following left carotid
arteriogram, resolved.

A VA examination was conducted in March 1974.  At that time
his complaints included headaches.  It was reported that he
was being treated at the Walter Reed hospital.  The
diagnostic impression indicated that there were no findings
on examination suggestive of any pathology, and noted that
residuals of cerebrovascular accident were not found on
examination.  A March 1974 VA psychiatric examination
revealed a diagnosis of non-psychotic organic brain syndrome
with circulatory disturbance, residuals of cerebrovascular
accident.

In April 1974, the RO denied service connection for residuals
of cerebral vascular accident.  This determination was
predicated upon the RO's finding that there was no clinically
significant evidence of residuals of cerebrovascular
accident.  The appellant was notified of that decision and of
his appellate rights.  He did not appeal that determination.
Accordingly, April 1974 decision is final.  38 U.S.C.A.
� 7105 (West 1991).  However, the appellant may reopen his
claim by submitting new and material evidence.  38 U.S.C.A.
� 5108 (West 1991).

New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration and, when considered in connection with
evidence previously assembled, is so significant that it must
be considered in order to fairly decide the merits of the
claim.  38 C.F.R. � 3.156(a).  In Hodge v. West, 155 F.3d
1356, 1363 (Fed.Cir. 1998), the Federal Circuit noted that
new evidence could be sufficient to reopen a claim if it
could contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it would not be enough to convince the
Board to grant a claim.

The United States Court of Appeals for Veterans Claims
(Court) has held that the newly presented evidence need not
be probative of all the elements required to award the claim,
but need only tend to prove each element that was a specified
basis for the last disallowance.  See Evans v. Brown, 9 Vet.
App. at 284.  Accordingly, the focus of the Board's inquiry
in this regard is upon whether the record now reflects that
the appellant's current vascular disabilities are related to
the appellant's period of military service.

The evidence received since the April 1974 decision includes
VA medical examination reports and outpatient clinical
records dated in July 1974, July 1975, 1998 and 1999.  The
1998 and 1999 treatment records and a December 1999 VA
examination reflect complaints of headaches and elevated
blood pressure readings, and symptoms described as "strange
feelings in his head," and record episodes of elevated blood
pressure readings.

During an August 2000 videoconference hearing, the appellant
reported the onset of headaches and hypertensive episodes
prior to his 1973 hospitalization during service.  He
indicated that these symptoms resolved following arteriogram,
but later returned.  He indicated that he also has impaired
memory.

The appellant has provided statements and presented
testimonial evidence regarding the continuity of
symptomatology relative to his vascular disorders since
service.  The Board must presume the credibility of this
evidence for purposes of determining whether new and material
evidence has been submitted.  See Kutscherousky v. West, 12
Vet. App. 369 (1999).  The appellant has presented evidence
of post service headaches, hypertension, and symptomatology
suggestive of cerebral impairment.  The Board finds that this
evidence is new and material and, thus, the claim is
reopened.

ORDER

Having submitted new and material evidence to reopen the
claim for entitlement to service connection for residuals of
cerebral vascular accident/subarachnoid hemorrhage with
headaches and hypertension, the appeal, to this extent only,
is granted.

REMAND

A claim that has been properly reopened requires a decision
based upon a de novo review of the record.  It is the opinion
of the Board that due process requirements necessitate a de
novo review by the RO with regard to the issues of
entitlement to service connection.  Bernard v. Brown, 4 Vet.
App. 384 (1993).

The record reflects that the appellant was initially
hospitalized in February 1973 in Thailand.  He was
subsequently transferred to a military hospital in late
February 1973.  A review of the evidence apparently shows
that all treatment records pertaining to this period of
hospitalization have not been associated with the claims
folder.  The Board is of the opinion that an attempt should
be made to secure these treatment reports.

In order to establish service connection, there must be
evidence of a service connected disease or injury and a
present disability which is attributable to such disease or
disability.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Evidence has been presented which is suggestive of residual
impairment associated with the vascular condition for which
the appellant was treated during service.  It is therefore
the opinion of the Board that a contemporaneous and thorough
VA examination, coupled with a careful review of the clinical
records concerning the history of the appellant's complaints,
is required in this instance.  In that regard, the findings
of such an examination and resultant medical opinion are
directly relevant to the issues of entitlement to service
connected presented in this case.  Littke v. Derwinski, 1
Vet. App. 90 (1990).

The Board further notes that there has been a significant
change in the law during the pendency of this appeal.  On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).  Among other things, this law eliminates the
concept of a well-grounded claim, redefines the obligations
of the Department of Veterans Affairs (VA) with respect to
the duty to assist, and supercedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded.  This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date.  Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, � 7, subpart (a), 114 Stat. 2096,
___ (2000).  See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).

Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, �� 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. �� 5102, 5103, 5103A, and 5107).  In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, 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)).
Therefore, for these reasons, a remand is required.

Accordingly, this case is REMANDED for the following:

1.  The RO is requested to furnish the
appellant the appropriate release of
information forms in order to obtain copies
of all VA, military, and private medical
records pertaining to treatment he received
for the disabilities in issue since service
which have not previously been obtained.

2.  The RO should request the National
Personnel Records Center, located in St.
Louis, Missouri to conduct a search for
records pertaining to the February 1973
hospitalization and postservice treatment at
Walter Reed Army Medical Center.

3.  A VA examination should be conducted by a
specialist in vascular disorders in order to
determine the nature, severity, and etiology
of the reported residuals of cerebral
vascular accident/subarachnoid hemorrhage
with hypertension and headaches.  The claims
folder and a copy of this Remand must be made
available to the examiner for review in
conjunction with the examination.  All
studies deemed necessary, to include
specialized tests, should be performed.
Following the examination and a review of the
record, it is requested that the examiner
render an opinion as to whether it is as
likely as not that any vascular disability
diagnosed, to include the residuals of a
cerebral vascular accident/subarachnoid
hemorrhage, hypertension and headaches are
related to the appellant's period of military
service or manifested within one year
following service.  A complete rational for
any opinion expressed should be include in
the report.

4.  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 is completed.  In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. �� 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.  For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among other things,
final regulations and General Counsel
precedent opinions.  Any binding and
pertinent court decisions that are
subsequently issued also should be
considered.

5.  Following any additional development
deemed appropriate by the RO, the RO should
readjudicate the issues in appellate status.
If the benefits sought on appeal remain
denied, the appellant and the appellant's
representative, should be provided with a
supplemental statement of the case.  The
supplemental statement of the case must
contain notice of all relevant actions taken
on the claims for benefits, to include a
summary of the evidence and applicable law
and regulations considered pertinent to the
issues currently on appeal.  An appropriate
period of time should be allowed for
response.

Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order.

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

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner.  See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2000) (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.

	ROBERT P. REGAN
Member, Board of Veterans' Appeals


condition: tinnitus

text:
Citation Nr: 0109001
Decision Date: 03/27/01    Archive Date: 04/03/01

DOCKET NO.  00-07 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania

THE ISSUES

1.  Entitlement to service connection for bilateral hearing
loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for degenerative joint
disease of the feet.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

R. T. Jones, Counsel

INTRODUCTION

The veteran served on active duty from March 1984 to March
1988.  This matter comes to the Board of Veterans' Appeals
(Board) from a January 1999 RO decision that denied service
connection for hearing loss, tinnitus, and degenerative joint
disease of the feet.

The body of this decision addresses the issues of service
connection for hearing loss and tinnitus.  Service connection
for degenerative joint disease of the feet is addressed in
the remand section at the end of this decision.

FINDINGS OF FACT

1.  Bilateral sensorineural hearing loss had its onset during
service.

2. Tinnitus is the result of service-connected sensorineural
hearing loss.

CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in service.  38
U.S.C.A. � 1131 (West 1991); 38 C.F.R. �� 3.303, 3.385
(2000).

2.  Tinnitus is proximately due to or the result of service-
connected hearing loss.  38 C.F.R. � 3.310 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The veteran served on active duty in the Army from March 1984
to March 1988.  His discharge document (DD Form 214) shows
that he was a heavy anti-armor weapons infantryman.

The veteran's service medical records shows that on medical
examination performed for enlistment purposes in March 1984,
audiometric testing revealed that pure tone decibel
thresholds were recorded at 500, 1,000, 2,000, 3,000, 4,000,
and 6,000 hertz as 10, 10, 0, 10, 0, and 10, respectively, in
the right ear; and 5, 0, 5, 20, 20, and 10 in the left ear.
His ears were listed as normal.  November 1984 audiometric
testing at the same frequencies showed pure tone decibel
thresholds of 15, 5, 5, 5, 5, and 10, respectively, in the
right ear; and 15, 5, 15, 20, 25, and 25 in the left ear.
July 1986 audiometric testing at the same frequencies showed
pure tone decibel thresholds of 15, 15, 5, 15, 15, and 15,
respectively, in the right ear; and 25, 20, 15, 30, 25, and
35 in the left ear.  A threshold shift of worsened hearing in
both ears at some frequencies was noted when compared to the
preceding audiogram.  In July 1987, the veteran was seen at a
clinic with complaints of impaired hearing, having difficulty
hearing people talk to him or calling his name.  Examination
showed cerumen (earwax) built up in the ears; his hearing
problem apparently was attributed to the earwax, and his ears
were irrigated to remove the earwax.  In January 1988, the
veteran waived having a service separation examination, and
the service medical records do not contain a report of
medical examination for separation purposes.  Service medical
records are negative for tinnitus.  The veteran was released
from active duty in March 1988.

In July 1998, the veteran submitted a claim for service
connection for hearing loss and tinnitus.  He did not report
any post-service treatment for hearing loss or tinnitus.

At an October 1998 VA examination, the veteran reported
bilateral hearing loss and tinnitus since service.
Audiometric testing revealed that pure tone decibel
thresholds were recorded at 250, 500, 1,000, 2,000, 3,000,
4,000, and 8,000 hertz as 10, 15, 20, 10, 30, 10, and 20,
respectively, in the right ear (on retest); and 15, 10, 20,
5, 50, 40, and 15 in the left ear (on retest).  His Maryland
speech recognition score was 88 percent correct in the right
ear, and 92 percent correct in the left ear.  The diagnoses
were normal right ear hearing with mild sensorineural loss at
3,000 hertz, and normal left ear hearing through 2,000 hertz
with a mild to moderate sensorineural hearing loss returning
to normal a 8,000 hertz.  It was noted that that he had
slightly impaired hearing discrimination, bilaterally.

II. Analysis

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1131; 38 C.F.R. � 3.303.

For the purposes of applying the laws administered by the VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies of 500,
1,000, 2,000, 3,000, and 4,000 Hertz is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies 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.

Secondary service connection may be granted for a disability
which is proximately due to or the result of an established
service-connected condition.  38 C.F.R. � 3.310.

A hearing loss disability under the standards of 38 C.F.R. �
3.385 was not shown in service, although such is not required
for service connection.  Service connection is still possible
if the veteran currently has a hearing loss disability under
the standards of 38 C.F.R. � 3.385, and the condition can be
linked to service.  Ledford v. Derwinski, 3 Vet. App. 87
(1992).

According to some medical authorities, the threshold for
normal hearing is 0 to 20 decibels, and higher threshold
levels indicate some degree of hearing loss.  Hensley v.
Brown, 5 Vet.App. 155 (1993).  Thus the veteran first
demonstrated at least some left ear hearing loss during
service.  With respect to the right ear, all audiometric test
during service were within normal limits, but there was an
additional decibel loss at some frequencies tested from the
time of the initial service audiometric examination in 1984
until the 1986 audiometric examination.  There was also a
deterioration in left ear hearing noted during audiometric
testing in service.  The veteran complained of hearing loss
during service in 1987; such apparently was attributed to
excessive earwax, and audiometric testing was not performed
at that time.  The veteran did not have a separation
examination prior to his 1988 release from active duty.
There were no further hearing tests from then until the 1998
VA audiometric examination.  That examination showed he
currently has a hearing loss disability in both ears under
the standards of 38 C.F.R. � 3.385.

Given the deteriorating hearing in both ears during service,
reasonably-assumed noise exposure during service, and the
veteran's statement that he first noticed his hearing loss in
service, the Board finds that the evidence is approximately
balanced on the question of whether the veteran's bilateral
ear hearing loss began in service.  Under such circumstances,
he is given the benefit of the doubt, 38 U.S.C.A. � 5107(b),
and the Board concludes that bilateral hearing loss was
incurred in service.  Thus, service connection is warranted
for bilateral hearing loss.

Service medical records are negative for complaints or
diagnosis of tinnitus.  Tinnitus was shown on VA examination
in 1998.  Pursuant to the present Board decision, service
connection is established for bilateral hearing loss.  Such
hearing loss is shown to be sensorineural in nature, and it
is known that tinnitus is often associated with sensorineural
hearing loss.  2 Cecil, Textbook of Medicine, � 464 at 2119-
2120 (18th ed. 1988).  Secondary service connection may be
given for disability which is due to an established service-
connected condition.  38 C.F.R. � 3.310.  Given these
circumstances, and applying the benefit-of-the-doubt rule (38
U.S.C.A. � 5107(b)), the Board finds that the veteran's
current tinnitus is due to his service-connected bilateral
sensorineural hearing loss.  Thus, secondary service
connection for tinnitus is granted.

ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.

REMAND

Since the January 1999 RO decision that denied service
connection for degenerative joint disease of the feet, there
has been a significant change in the law.  On November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).  Among other things, this law eliminates the concept
of a well-grounded claim and redefines the obligations of the
VA with respect to notice to a claimant and the duty to
assist.  This change in law is applicable to all claims filed
on or after the date of enactment of the law, or filed before
the date of enactment and not yet final as of that date.  Id.
Because of the change in the law, a remand is required for
compliance with the notice and duty to assist provisions
contained in the new law.  See Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, �� 3-4, 114 Stat. 2096 (2000)
(to be codified as amended at 38 U.S.C. �� 5102, 5103, 5103A,
and 5107).

With regard to the claim for service connection for
degenerative joint disease of the feet, the Board notes that
the veteran had numerous complaints of foot pain and certain
abnormalities of the feet were noted in service.  In his July
1998 application for service connection, the veteran
indicated that he received treatment since 1991 by Dr. Carl
Rosenbaum in Philadelphia, Pennsylvania, and the veteran
provided an authorization for release of information from Dr.
Rosenbaum.  It does not appear that the RO sought to obtain
records from Dr. Rosenbaum.  In order to satisfy its duty to
assist the veteran, the RO should attempt to obtain all
medical records concerning treatment of the degenerative
joint disease of the feet.  Bell v. Derwinski, 2 Vet. App.
611 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

Accordingly, this issue is REMANDED for the following:

1.  The RO should obtain the names and
addresses of all health care providers (VA
or non-VA) where the veteran has received
examination or treatment for any foot
condition since his March 1988 release
from active service.  After receiving this
information and any necessary releases,
the RO should contact the named medical
providers and obtain copies of the related
medical records.  This includes, but is
not limited to, records dated from 1991
from Dr. Carl Rosenbaum.

2.  The RO should ensure that any other
notification and development action (e.g.,
providing any indicated VA
examination/medical opinion) required by
the Veterans Claims Assistance Act of 2000
is completed with respect to the veteran's
claims for service connection for
degenerative joint disease of the feet.

3.  Thereafter, the RO should review, on
the merits, the claim for service
connection for degenerative joint disease
of the feet.  If the claim remains denied,
the veteran and his representative should
be provided with a supplemental statement
of the case, and given an opportunity to
respond, before the case is returned to
the Board.

The veteran has the right to submit additional evidence and
argument on the issue the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

	L. W. TOBIN
	Member, Board of Veterans' Appeals