condition: diabetes

text:
Citation Nr: 0417000
Decision Date: 06/28/04    Archive Date: 07/13/04

DOCKET NO.  03-02 326	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to service connection for ischemic
cardiovascular disease, including as secondary to service-
connected diabetes mellitus type II.

2.  Entitlement to service connection for retinopathy,
including as secondary to service-connected diabetes mellitus
type II.

REPRESENTATION

Veteran represented by: AMVETS (American Veterans)

ATTORNEY FOR THE BOARD

L. J. Driever, Counsel

INTRODUCTION

The veteran had active service from October 1968 to October
1970.  His claims come before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision of the
Cleveland, Ohio, Department of Veterans Affairs (VA) Regional
Office (RO).

In an Appeal Hearings Options form received in January 2003,
the veteran requested a local hearing at the RO before a
Decision Review Officer.  In a letter dated in May 2003, the
RO acknowledged the veteran's request and informed him of the
date of his scheduled hearing.  On that date, however, the
veteran canceled the hearing.  The Board thus considers the
veteran's hearing request withdrawn and deems this case ready
for appellate review.

The Board REMANDS the issue of entitlement to service
connection for ischemic cardiovascular disease, including as
secondary to service-connected diabetes mellitus type II, to
the RO via the Appeals Management Center in Washington, DC.
VA will notify the veteran and his representative if they are
required to take further action with regard to this claim.

FINDINGS OF FACT

1.  VA provided the veteran adequate notice and assistance
with regard to his claim of entitlement to service connection
for retinopathy, including as secondary to service-connected
diabetes mellitus type II.

2.  The veteran does not currently have retinopathy.

CONCLUSION OF LAW

Retinopathy was not incurred in or aggravated by service and
is not proximately due to or the result of a service-
connected disability.  38 U.S.C.A. �� 1110, 5102, 5103, 5103A
(West 2002); 38 C.F.R. �� 3.159, 3.303, 3.310 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law.  Regulations
implementing the VCAA were published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) and codified at
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326 (2003).  The
VCAA and its implementing regulations apply to the issue
currently on appeal.

The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim.  They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.

The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA.  See Quartuccio v. Principi, 16
Vet. App. 183 (2002).  For the reasons noted below, the Board
finds that VA has strictly complied with the notification and
assistance provisions of the VCAA such that the Board's
decision to proceed in adjudicating this claim does not
prejudice the veteran in the disposition thereof.  See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

A.  Duty to Notify

The Court has indicated that notice under the VCAA must be
given prior to an initial unfavorable decision by the agency
of original jurisdiction.  See Pelegrini v. Principi, 17 Vet.
App. 412 (2004).  The Court also discussed four notice
elements:

	1.  Notice of the information and evidence not of record
that is necessary to substantiate the claim;
	2.  Notice of the information and evidence that VA will
seek to provide;
	3.  Notice of the information and evidence the claimant
is expected to provide;
 	and,
	4.  A request to the claimant to provide VA with all
relevant evidence and argument pertinent to the claim at
issue.

Id. at 14.

In a letter dated December 2001, the RO acknowledged the
veteran's claim for service connection for vision problems
secondary to diabetes, notified the veteran of the evidence
needed to substantiate that claim, including medical evidence
linking a current disability to service, informed him of VA's
newly expanded duties to notify and assist, and indicated
that it was developing the veteran's claim pursuant to the
latter duty.  The RO explained that it would make reasonable
efforts to assist the veteran in obtaining and developing all
outstanding information and evidence provided he identified
the additional information and evidence he wanted the RO to
obtain.  The RO indicated, however, that it was ultimately
the veteran's responsibility to support his claim with
appropriate evidence.  The RO noted that it had already
requested medical records from two private physicians.  The
RO asked the veteran to complete the enclosed forms
authorizing the release of all other private treatment
records.  The RO provided the veteran the option of sending
such evidence to the RO on his own initiative.

The content of this notice considered in conjunction with the
content of other documents sent to the veteran while his
appeal was pending reflect compliance with the express
requirements of the law as found by the Court in Pelegrini.
As previously indicated, the VCAA notice informed the veteran
of the evidence needed to support his claim.  It also
indicated that VA would assist the veteran in obtaining all
such evidence, but that in the meantime, the veteran should
submit any pertinent evidence and information he had to
support his claim.  In addition, in a rating decision dated
July 2002, a letter notifying the veteran of that decision, a
statement of the case issued in January 2003, and a
supplemental statement of the case issued in January 2004,
the RO again notified the veteran of the information and
evidence needed to substantiate his claim.  See 38 U.S.C.A.
�� 5102, 5103 (West 2002).  The RO also notified the veteran
of the reasons for which his claim had been denied and of the
evidence it had considered in denying that claim, and
provided him the regulations pertinent to his claim,
including those governing VA's duties to notify and assist.

The RO sent the aforementioned notice before initially
deciding the veteran's claim in July 2002.  The timing of
this notice thus complies with the express requirements of
the law as found by the Court in Pelegrini v. Principi, 17
Vet. App. at 420-22 (2004) (holding, in part, that a VCAA
notice, as required by 38 U.S.C. � 5103(a), must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA
benefits).

A.  Duty to Assist

VA has made reasonable efforts to identify and obtain
relevant records in support of the veteran's claim.  38
U.S.C.A.� 5103A (a), (b) and (c) (West 2002).  The RO secured
and associated with the claims file the veteran's service
medical records and VA and private treatment records.  As
well, the RO conducted medical inquiry in an effort to
substantiate the veteran's claim.  Specifically, the RO
afforded the veteran VA examinations of his eyes, during
which examiners addressed whether the veteran had
retinopathy.  38 U.S.C.A.� 5103A(d) (West 2002).  In a
written statement received in January 2004, the veteran
request that his appeal proceed and neither he nor his
representative has thereafter identified any additional
evidence that should be obtained.

Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his
claims."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); see also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc) (observing that the VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both
observing circumstances as to when a remand would not result
in any significant benefit to the claimant); Bernard v.
Brown, 4 Vet. App. 384, 393-94 (1993) (holding that when the
Board addresses in its decision a question that has not been
addressed by the RO, it must consider whether the appellant
has been given adequate notice to respond and, if not,
whether he has been prejudiced thereby).  The Board thus
finds that VA has done everything reasonably possible to
notify and assist the veteran and that the record is ready
for appellate review.

II.  Analysis of Claim

The veteran seeks service connection for retinopathy.
Service connection may be granted for disability resulting
from injury or disease incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  Service connection
may be granted for any disease diagnosed after discharge when
all of the evidence, including that pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. � 3.303(d).

Service connection may also be granted when a claimed
disability is found to be proximately due to or the result of
a service-connected disability, or when aggravation of a
nonservice-connected disorder is found to be proximately due
to or the result of a service-connected disability.  38
C.F.R. � 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448
(1995) (holding that, pursuant to 38 U.S.C.A. � 1110 and
38 C.F.R. � 3.310(a), when aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation).

In written statements submitted while this appeal was pending
and during VA examinations, the veteran asserted that he
developed retinopathy as a result of his diabetes mellitus.
The medical evidence of record does not support the veteran's
assertion.

The veteran had active service from October 1968 to October
1970.  His service medical records reflect that, during that
time period, examiners diagnosed defective vision but not
retinopathy.

Following discharge, the veteran sought VA and private
treatment for various medical conditions.  During treatment
visits, examiners found that the veteran had diabetes
mellitus type II.  Based on these findings, in a rating
decision dated September 2001, the RO granted the veteran
service connection for diabetes mellitus secondary to his
presumed herbicide exposure in Vietnam.

During private outpatient treatment visits in 1996 and 1997,
the veteran complained of shadows in the right eye.
Physicians diagnosed presumed ocular histoplasmosis syndrome
and color blindness, but not retinopathy.  During a VA
outpatient treatment visit in 2000, the veteran reported
white spots in the back of his eyes.  A physician noted some
increased light reflex and arteriolar narrowing bilaterally,
but no retinopathy.  In 2002, the veteran sought eye
treatment after touching poison oak and rubbing his eyes.
The examiner diagnosed mild superior arcuate depression
greater on the right, but did not noted retinopathy.  Four
months later, the veteran again sought eye treatment and an
examiner noted suspect glaucoma due to a visual field defect
and asymmetric cup to disc ratios.  The examiner did not
diagnose retinopathy.

In March 2002, the veteran underwent a VA eye examination,
during which he reported that he had had diabetes for five
years and had been told he had white spots in the back of his
eyes.  An examiner diagnosed diabetes without retinopathy in
both eyes and asymmetric cup to disc ratios on the right.

In May 2002, the veteran underwent a VA Agent Orange registry
examination, during which he reported that he had had
diabetes for three or four years and had been told two months
ago that he had white spots in the back of his eyes.  An
examiner noted some increased light reflex and arteriolar
narrowing bilaterally.  He did not diagnose retinopathy.

During a VA diabetic eye examination, including fundiscopic,
conducted in July 2003, an examiner diagnosed, in pertinent
part, diabetes mellitus without retinopathy in both eyes.

The preponderance of the evidence is clearly against the
veteran's claim of entitlement to service connection for
retinopathy, including as secondary to service-connected
diabetes mellitus type II.  The competent medical evidence of
record clearly rules out the presence of retinopathy and
there is no competent medical evidence of record refuting
that diagnostic conclusion.  To prevail in his claim, the
veteran must submit competent evidence establishing the
existence of a present disability resulting from service or a
service-connected disability.  See Boyer v. West, 210 F.3d
1351, 1353 (Fed. Cir. 2000); Gilpin v. West, 155 F.3d 1353,
1355-1356 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d
1328, 1332 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992).  In this case, the veteran has
submitted no evidence other than his own assertions
indicating that he currently has retinopathy.  Unfortunately,
these assertions are insufficient to diagnose a disability.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992)
(holding that laypersons are not competent to offer medical
opinions).

Based on these facts, the Board concludes that the veteran
does not currently have retinopathy that was incurred in or
aggravated by service or that is proximately due to or the
result of a service-connected disability.  The evidence is
not in relative equipoise; therefore, the veteran may not be
afforded the benefit of the doubt in the resolution of this
claim.  Rather, as the preponderance of the evidence is
against the claim, it must be denied.

ORDER

Service connection for retinopathy, including as secondary to
service-connected diabetes mellitus type II, is denied.

REMAND

The veteran also seeks service connection for ischemic
cardiovascular disease, including as secondary to service-
connected diabetes mellitus type II.  For the reasons that
follow, additional action is necessary before the Board can
decide this claim.

As previously indicated, the VCAA, codified at
38 U.S.C.A. �� 5102, 5103, 5103A, 5107, and its implementing
regulations, codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159
and 3.326(a), are applicable to the veteran's appeal.  In
this case, VA has not strictly complied with the VCAA by
providing the veteran adequate assistance regarding his claim
for service connection for ischemic cardiovascular disease.

In particular, under 38 U.S.C.A. � 5103A, VA's duty to assist
includes providing the claimant a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on a claim.  In this
case, such an examination is necessary.

The RO previously afforded the veteran a VA examination of
his heart in July 2003, but the report of that examination is
inadequate for the purpose of determining whether a current
cardiovascular disorder is related to the veteran's service-
connected diabetes mellitus.  Therein, a physician concluded
that the veteran's diabetes mellitus type II "contributed"
to his current heart disorder, or more specifically, his
coronary artery disease and congestive heart failure, but
that those disorders were most likely secondary to the
veteran's long-standing smoking history and hypertension.

As the Board previously indicated, service connection may be
granted when aggravation of a nonservice-connected disorder
is found to be proximately due to or the result of a service-
connected disability.  Allen, 7 Vet. App. at 448 (holding
that, pursuant to 38 U.S.C.A. � 1110 and � 3.310(a), when
aggravation of a veteran's nonservice-connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation).  In
this case, a remand to obtain examination clarification as to
whether diabetes mellitus aggravates the veteran's
cardiovascular disease is required.

In addition, as previously indicated, since the VCAA was
enacted, the Court has mandated that VA ensure strict
compliance with the provisions of the VCAA.  Quartuccio,
supra.  Given this holding, after all development is
completed, the RO should ensure that the veteran is properly
notified consistent with the provisions of 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159.

Accordingly, this case is REMANDED for the following:

1.  The RO should afford the veteran a VA
cardiovascular examination.  The RO
should forward the claims file to the
examiner for review and ask the examiner
to confirm in his written report that he
conducted such a review.  Following a
thorough evaluation, during which all
indicated tests are performed, the
examiner should:

a) diagnose all cardiovascular
disorders shown to exist;

b) opine i) whether each existing
cardiovascular disorder was directly
caused by diabetes mellitus, or ii)
whether the severity of each
existing cardiovascular disorder
worsened in degree due to diabetes
mellitus; and

c) provide detailed rationale, with
specific references to the record,
for the opinions provided.

2.  The RO should then review the
examination report to ensure that it
complies with the previous instruction.
If the report is deficient in any regard,
the RO should undertake the requisite
corrective action.

3.  Thereafter, the  RO should review the
claims file and ensure that any additional
notification or development action
required by the VCAA and its implementing
regulations is completed.  Such action
should include informing the veteran and
his representative of the evidence needed
to support the veteran's claim and
indicating whether the veteran should
submit such evidence or whether the RO
will obtain and associate such evidence
with the claims file.  The RO should
afford the veteran and his representative
an opportunity to respond to this notice
by submitting evidence or information or
by identifying evidence to be obtained and
then take appropriate follow-up steps to
assist the veteran in obtaining all
identified evidence.

4.  Once all development is completed,
the RO should readjudicate the veteran's
claim based on a consideration of all of
the evidence of record.  If the benefit
sought on appeal is not granted, the RO
should provide the veteran and his
representative a supplemental statement
of the case and an opportunity to respond
thereto.

Thereafter, subject to current appellate procedure, the RO
should return this case to the Board for further
consideration, if in order.  By this REMAND, the Board
intimates no opinion as to the ultimate disposition of the
appeal.  No action is required of the veteran unless he
receives further notice.  He does, however, have the right to
submit additional evidence and argument on the matter the
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369,
372 (1999).

The law requires that this claim be afforded the RO's
expeditious treatment.  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) (providing that all claims
that are remanded by the Board or by the Court for additional
development or other appropriate action must be handled
expeditiously); see also VBA's Adjudication Procedure Manual,
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court).

______________________________________________
	J. M. Daley
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
FORM
JUN
2003
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4597
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

VA
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series: legacy

judge_norm: GARY L GICK

disposition: denied

text:
Citation Nr: 0418000
Decision Date: 07/06/04    Archive Date: 07/21/04

DOCKET NO.  02-14 836	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
the appellant's claim of entitlement to service connection
for the cause of the veteran's death.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel

INTRODUCTION

The appellant is the widow of the veteran who served on
active duty from June 1941 to March 1945.  He died in
December 1983.

Service connection for the cause of the veteran's death was
previously denied by the Board of Veterans' Appeals
(hereinafter Board) in a decision of October 1985.

This current matter came before the Board on appeal from a
rating decision of March 2002, by the St. Petersburg, Florida
Regional Office (RO), which denied the appellant's attempt to
reopen her claim of entitlement to service connection for the
cause of the veteran's death.  The appellant perfected a
timely appeal to that decision.

FINDINGS OF FACT

1.  All relevant available evidence necessary for an
equitable disposition of the issue addressed in this decision
has been obtained by the RO.

2.  The Board denied entitlement to service connection for
the cause of the veteran's death in October 1985.

3.  The additional evidence associated with the claims file
since the October 1985 Board decision does not, by itself or
considered with previous evidence of record, relate to an
unestablished fact necessary to substantiate the claim for
service connection for the cause of the veteran's death.

CONCLUSIONS OF LAW

1.  The October 1985 Board decision that denied service
connection for the cause of the veteran's death is final.
38 U.S.C.A. � 7104 (West 2002); 38 C.F.R. � 20.1100 (2003).

2.  The evidence received since the October 1985 Board
decision, which denied service connection for the cause of
the veteran's death, is not new and material, and the claim
for this benefit is not reopened.  38 U.S.C.A. � 5108 (West
2002); 38 C.F.R. � 3.156(a) (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act.

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
�� 5102, 5103, 5103A, 5107 (West 2002).  This law redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements.  The final
regulations implementing the VCAA were published on August
29, 2001, and they apply to most claims for benefits received
by VA on or after November 9, 2000, as well as any claim not
decided as of that date.  66 Fed. Reg. 45,620, et seq. (Aug.
29, 2001) (codified as amended at 38 C.F.R. �� 3.102,
3.156(a), 3.159 and 3.326(a)).

The VCAA requires VA to (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide.  See 38 U.S.C.A.
� 5103(a); 38 C.F.R. � 3.159(b).

The United States Court of Appeals for Veterans Claims
(Court) in Pelegrini v. Principi, 17 Vet. App. 412 (2004),
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
� 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits.  In this case, the AOJ decision
which is the subject of this appeal was made in March 2002.
In this regard, the Board notes that the appellant was
provided notice of the VCAA on January 2, 2002, prior to the
adjudication which is the subject of this appeal.  And, the
content of the notice fully complied with the requirements of
38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b).  The appellant
has been provided with every opportunity to submit evidence
and argument in support of her claim, and to respond to VA
notices.

In Pelegrini, supra, the Court indicated that VA must also
request or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)."  This
new "fourth element" of the notice requirement comes from
the language of 38 C.F.R. � 3.159(b)(1).  VA's General
Counsel, however, in a precedent opinion held that the
Court's statement that sections 5103(a) and 3.159(b)(1)
require VA to include such a request as part of the notice
provided to a claimant under those provisions is obiter
dictum and is not binding on VA.  VAOPGCPREC 1-2004 (February
24, 2004).  It was further noted that section 5103(a) does
not require VA to seek evidence from a claimant other than
that identified by VA as necessary to substantiate the claim.

The Board finds that VA's duties under the law and recently
revised implementing regulations have been fulfilled.  The
appellant was provided adequate notice of the evidence needed
to substantiate her claim.  For example, the discussions in
the March 2002 decision appealed and the August 2002
statement of the case (SOC) (especially when considered
collectively) informed her of the information and evidence
needed to substantiate her claim and complied with VA's
notification requirements.

Additionally, the RO sent the appellant a letter in January
2002 specifically informing her of the enactment of the VCAA
and its resulting impact on her particular claim.  The RO not
only explained the duties to notify and assist her with her
claim, but also explained what the evidence must show to
establish her entitlement, when and where to send pertinent
information, what VA had done to assist her in developing her
claim, and how to contact VA for additional assistance.  This
included assuring her that VA would obtain all VA or other
Federal records that she identified.  So this letter, even
aside from the rating decision alluded to above, and the SOC
provided her with a specific explanation of the type of
evidence necessary to substantiate her claim, as well as an
explanation of what evidence was to be provided by her and
what evidence the VA would attempt to obtain on her behalf.
See generally Quartuccio v. Principi, 16 Vet. App. 183
(2002).

The RO also apprised the appellant of the applicable laws and
regulations in the SOC.  And the basic requirements for
establishing service connection for the cause of the
veteran's death have remained essentially the same despite
the change in the law concerning the preliminary duties to
notify and assist.  The Board finds, then, that VA has no
outstanding duty to inform her that any additional
information or evidence is needed.

When there is extensive factual development in a case, and
there is no reasonable possibility that any further
assistance would aid the appellant in substantiating her
claim, VCAA does not apply.  Wensch v. Principi, 15 Vet App
362 (2001); Dela Cruz; see also 38 U.S.C.A. � 5103A(a)(2)
(Secretary not required to provide assistance "if no
reasonable possibility exists that such assistance would aid
in substantiating the claim").

The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for fair
and equitable resolution of the claim at issue has been
obtained.  There is no additional evidence, pertinent to the
claim, that can be obtained, which has not been obtained.
The RO has obtained all of the service and other records that
it possibly can and provided the appellant an opportunity to
submit alternative evidence to compensate for the evidence
the RO could not obtain.  The Board may therefore proceed to
adjudicate the claim at issue.  See Bernard v. Brown, 4 Vet.
App. 384 (1993).

II.  Pertinent Laws, Regulations, and Court Precedents.

To establish service connection for the cause of the
veteran's death, evidence must be presented which in some
fashion links the fatal disease to a period of military
service or an already service-connected disability.  See 38
U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303, 3.310, 3.312
(2003); Ruiz v. Gober, 10 Vet. App. 352 (1997).  In short,
the evidence must show that a service-connected disability
was either the principal cause or a contributory cause of
death.  For a service-connected disability to be the
principal (primary) cause of death, it must singly or with
some other condition be the immediate or underlying cause or
be etiologically related.  For a service-connected disability
to constitute a contributory cause it must contribute
substantially or materially; 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
U.S.C.A. � 1310; 38 C.F.R. � 3.312; see also Gabrielson v.
Brown, 7 Vet. App. 36 (1994).

Moreover, when the Board or the RO has previously denied a
claim, it may not thereafter be reopened unless new and
material evidence is submitted.  38 U.S.C.A. � 5108 (West
2002); 38 C.F.R. � 3.156 (2003).

The Board observes that the VCAA provides that nothing in the
Act shall be construed to require the Secretary to reopen a
claim that has been disallowed except when new and material
evidence is presented or secured, as described in 38 U.S.C.A.
� 5108.  38 U.S.C.A. � 5103A(f) (West 2002).  The
implementing regulations modify the definition of new and
material evidence and provide for assistance to a claimant on
claims to reopen.  38 C.F.R. �� 3.156(a), 3.159(c).

The implementing regulations redefine "new and material
evidence" and clarify the types of assistance that VA will
provide to a claimant attempting to reopen a previously
denied claim.  38 C.F.R. �� 3.156(a) and 3.159(b).  And as
already alluded to, these specific provisions are applicable
only to claims filed on or after August 29, 2001.  The
appellant filed her petition to reopen after this date, so
the Board will apply these revised provisions, including the
new definition of what constitutes new and material evidence.

Under the revised 38 C.F.R. � 3.156(a), new evidence means
existing evidence not previously submitted to agency
decisionmakers.  Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim.  New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim.

In determining whether new and material evidence has been
presented, VA must initially decide whether evidence
submitted since the prior final denial is, in fact, new.
This analysis is undertaken by comparing newly received
evidence with the evidence previously of record.  After
evidence is determined to be new, the next question is
whether it is material.  The credibility of new evidence is
assumed for the limited purpose of determining whether it is
material.  Justus v. Principi, 3 Vet. App. 510 (1992).

III.  Legal analysis.

When the claim for service connection for the cause of the
veteran's death was considered by the Board in October 1985,
the record was fairly clear.

A certificate of death, dated in January 1984, reflects that
the veteran died on December [redacted], 1983; the immediate cause of
death was reported as cardiac arrhythmia.  At the time of the
veteran's death, service connection was in effect for
lumbosacral sprain with degenerative disease, evaluated as 60
percent disabling; malaria and appendectomy, each evaluated
as noncompensably disabling.  The veteran had a combined
disability evaluation of 60 percent; and, a total disability
evaluation based on individual unemployability had been
established, effective March 10, 1978.

A review of the veteran's service records indicate that he
served on active duty from June 1941 to March 1945.  The
veteran's service medical records were negative for any
complaints, findings or diagnoses pertaining to a
cardiovascular disease or hypertension.

A VA compensation examination, conducted in January 1947,
reflect evaluation mainly for a back disorder.  At that time,
blood pressure readings of 150/90 and 120/70 were recorded.
Evaluation of the cardiovascular system was reported to be
normal.  A chest x-ray performed in January 1947 reported
that the heart and mediastinum appeared normal.

Medical evidence of record, VA as well as private treatment
reports, dated from June 1953 through May 1978, reflect that
the veteran received ongoing treatment for his service-
connected back disorder.  These records are completely silent
with respect to any complaints or findings concerning a
cardiovascular disease.  On the occasion of a VA examination
in May 1978, it was noted that evaluation of the back
revealed "much pain" with all movements, with a poor range
of motion.  Muscular palpation produced pain, and muscle
spasm was present in both areas of the back.  The veteran
indicated that he had to use support to walk because his back
and legs became very painful and weak.  An x-ray study of the
veteran's lumbosacral spine revealed incidental findings of
calcium plaque in the walls of the abdominal aorta and iliac
vessels.

Based upon the evidence of record at that time, the Board
concluded in its 1985 decision that a cardiovascular disease,
the cause of the veteran's death, was not incurred in or
aggravated by service, and that a cardiovascular disease
could not be presumed to have been incurred therein.  It was
also determined that the veteran's death was not casually
related to his service-connected disabilities, and that his
service-connected disabilities did not result in such
debilitating effects as to render him materially less capable
of resisting the effects of heart disease.

The evidence received since the October 1985 decision
essentially consists of the following:  VA progress notes
dated from January 1983 to November 1983; VA progress notes
dated from April 1981 to September 1983; duplicate medical
records dated from August 1973 to September 1983; and
duplicate private treatment reports, dated from August 1973
to July 1977.

These records essentially show that the veteran received
treatment for a variety of disabilities, including coronary
artery disease with angina.  The veteran was seen during the
period from January to November 1983 due to increased chest
pain; he was treated with changes in dosages and types of
prescribed medications.  The records indicate that the
veteran was seen by a VA cardiologist in September 1983 in
order to determine whether cardiac catheterization with a
view toward cardiac bypass surgery was warranted at that
time.  Following some diagnostic testing, it was determined
that the veteran's chest pain was probably due to angina but
it could also be a component of esophageal spasm; it was
further concluded that the veteran was not yet a candidate
for cardiac catheterization, and adjustment of medication and
additional studies, including gastrointestinal series, were
recommended.  In November 1983, the veteran reported some
increasing chest pain; his medication dosages were increased.
The veteran died in the emergency room of a private hospital
on December [redacted], 1983, due to cardiac arrhythmia.

Upon review of the record, the Board acknowledges that the
evidence submitted since the October 1985 decision is "new"
in that these treatment records were not considered by the
Board in the October 1985 decision.  It does not appear,
however, that any of these records are material to the issue
at hand.  While new in the sense that they were not
previously before VA decisionmakers, such records and reports
show no more than treatment for the veteran's cardiovascular
disease which became manifested many years after his
discharge from military service.  They do not suggest a nexus
between that disease and service; the new treatment reports
do not show that a cardiovascular disease was either incurred
or related to active service.  They also do not suggest a
nexus between that the cardiovascular disease and any
service-connected disability.  Consequently, while this
evidence is new, it does not raise a reasonable possibility
of substantiating the claim.

Regarding the contentions of the appellant that the veteran's
cause of death as shown on the certificate of death, i.e.,
cardiac arrhythmia, is related to service or to the service-
connected lumbosacral sprain with degenerative disease, she
is a layperson, and her opinion in this matter is not
competent evidence, as opinions regarding medical nexus
require medical expertise.  See Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).  Additionally, her statements are
duplicative of those she made in the earlier claim.

Therefore, the Board finds that the evidence received
subsequent to the Board's October 1985 determination is not
new and does not serve to reopen the appellant's claim for
service connection for the cause of the veteran's death.  38
C.F.R. � 3.156 (2003).  The Board has considered the doctrine
of reasonable doubt in the appellant's favor, but, as the
preponderance of the evidence is against her claim, that
doctrine is not for application.  See Gilbert v. Derwinski, 1
Vet. App. 49, 55 (1990); 38 U.S.C.A. � 5107 (West 2002).

ORDER

New and material evidence not having been received, the claim
of entitlement to service connection for the cause of the
veteran's death is not reopened and the benefit sought on
appeal is denied.

____________________________________________
	Gary L. Gick
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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judge_norm: A BRYANT

disposition: remanded

text:
Citation Nr: 0419000
Decision Date: 07/15/04    Archive Date: 07/27/04

DOCKET NO.  97-32 016	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a disability evaluation in excess of 30
percent, effective as of April 1, 1998, for post traumatic
stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Trueba-Sessing, Counsel

INTRODUCTION

The veteran served on active service from June 1966 to April
1968.

The case came originally before the Board of Veterans'
Appeals (Board) on appeal from a January 1997 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Detroit, Michigan, which denied the veteran
entitlement to a disability rating in excess of 10 percent
for PTSD.  Subsequently, in a December 1998 rating decision,
the veteran was awarded a 30 percent rating for his PTSD
effective November 27, 1996 (the date of claim).

As the veteran perfected his appeal regarding the above
issue, the case was forwarded to the Board for appellate
adjudication.  And, in a July 2001 Board decision, the Board
denied the veteran a disability rating for his PTSD in excess
of 30 percent as effective prior to April 1, 1998, but
granted a 50 percent rating, effective as of April 1, 1998.

The appellant appealed the Board's decision to the United
States Court of Appeals for Veterans Claims (Court).
Following the October 2002 veteran's brief, and the March and
May 2003 Secretary's briefs, a November 2003 Court decision
vacated and remanded the July 2001 Board decision but only
with respect to the issue of entitlement to a disability
evaluation in excess of 50 percent, effective as of April 1,
1998, for PTSD.  At present, the appellant's case is once
again before the Board for appellate review.

Lastly, the Board notes that the veteran presented testimony
in June 1998 during a hearing on appeal at the RO before a
hearing officer.  A copy of the hearing transcript issued
following the hearing is of record.

REMAND

Pursuant to the Veterans Claims Assistance Act (VCAA), Pub.
L. No. 106-475, 114 Stat. 2096 (2000), see 38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), VA
first has a duty to notify the appellant and the accredited
representative of any information and evidence necessary to
substantiate his/her claims for VA benefits.  See generally
38 U.S.C.A. �� 5102, 5103 (West 2002); 38 C.F.R. � 3.159(b)
(2003).  Furthermore, the VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claims, although the ultimate responsibility for furnishing
evidence rests with the appellant.  See 38 U.S.C.A. � 5103A
(West 2002); 38 C.F.R. � 3.159(c) (2003).

In the present case, the Board finds that the VA's redefined
duty to assist a claimant, as set forth in the VCAA, has not
been fulfilled regarding the issue on appeal.  See Quartuccio
v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi,
16 Vet. App. 370 (2002).

In this respect, pursuant to the Court's instructions in the
November 2003 Court decision, the veteran should be scheduled
for an additional VA medical examination by a medical doctor,
other than Dr. Decker or Dr. Lloyd.  The examiner must
provide a medical opinion regarding the sizeable discrepancy
between the global assessment of functioning (GAF) scores
assigned to the veteran on December 20, 1999 and December 21,
1999.  If the medical evidence of record is insufficient, or,
in the opinion of the Board, of doubtful weight or
credibility, the Board is always free to supplement the
record by seeking an advisory opinion, ordering a medical
examination or citing recognized medical treatises in its
decisions that clearly support its ultimate conclusions.
However, it is not free to substitute its own judgment for
that of such an expert.  See Colvin v. Derwinski, 1 Vet. App.
171, 175 (1991).  Accordingly, in order to afford the veteran
due process of law, the veteran should be scheduled to
undergo a VA psychiatric examination in order to ascertain
the level of severity of the veteran's PTSD.

Additionally, the RO should assist the appellant in obtaining
any additional available VA and private medical records that
may be identified as relevant to the service-connected PTSD.

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

1.  The RO should contact the veteran and
request that he provide a list of the
names and addresses of all doctors and
medical care facilities (hospitals, HMOs,
etc.) who have treated him since April 1,
1998 to the present, and who possess
records relevant to the service-connected
PTSD.  Provide the veteran with release
forms and ask that a copy be signed and
returned for each health care provider
identified and whose treatment records
are not already contained within the
claims files.  When the veteran responds,
obtain records from each health care
provider he identifies (except where VA
has already made reasonable efforts to
obtain the records from a particular
provider).  If these records cannot be
obtained and there is no affirmative
evidence that they do not exist, inform
the veteran of the records that the RO
was unable to obtain, including what
efforts were made to obtain them.  Also
inform the veteran that adjudication of
the claim will be continued without these
records unless he is able to submit them.
Allow an appropriate period of time
within which to respond.  Furthermore,
the veteran should be specifically
informed as to what portion of evidence
he is required/expected to submit, and
which portion of the evidence the VA
would attempt to obtain in order to
assist the veteran in substantiating the
claim, per 38 U.S.C.A. �� 5103(a), 5103A;
Quartuccio v. Principi, 16 Vet. App. 183
(2002); Charles v. Principi, 16 Vet. App.
370 (2002).

2.  The RO should request that the
veteran provide information as to the
dates of any treatment at any VA Medical
Center (VAMC) since April 1, 1998 to the
present relevant to the service-connected
PTSD.  All identified treatment records
from any reported VAMC not already
contained within the claims files should
be obtained and associated with the
claims files.  If the search for the
above records has negative results, the
claims files must be properly documented
with information obtained from the VA
facility(ies).  Furthermore, the veteran
should be specifically informed as to
what portion of the evidence he is
required/expected to submit, and which
portion of the evidence the VA would
attempt to obtain in order to assist the
veteran in substantiating the claim.  Per
38 U.S.C.A. �� 5103(a), 5103A;
Quartuccio, supra; Charles, supra.

3.  Only after the development described
above has been completed, the RO should
make arrangements with the appropriate VA
medical facility for the veteran to be
afforded the following examination:
a)  Pursuant to the Court's
instructions in the November 2003 Court
decision, the veteran should be
scheduled for an VA PTSD examination by
a psychiatrist, other than Dr. Decker
or Dr. Lloyd, to identify the current
level of impairment resulting from his
service-connected PTSD.  The claims
folders must be made available to the
examiner for review before the
examination.  The examiner must
indicate in the examination report that
the veteran's claims folder was
reviewed prior to the examination.  All
tests and studies deemed helpful by the
examiner should be conducted in
conjunction with the examination.  The
examiner's report should include an
evaluation which addresses the presence
or absence of the manifestations
described under the General Rating
Formula for Mental Disorders of the VA
Schedule for Rating Disabilities
(Rating Schedule) (38 C.F.R. � 4.130,
Diagnostic Code 9411) for a disability
rating higher than the currently
assigned 30 percent effective as of
April 1, 1998.  Additionally, the
examiner should also utilize the
diagnostic criteria set forth in the
American Psychiatric Association's
Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-
IV), and assign a Global Assessment of
Functioning (GAF) Score consistent with
DSM-IV.  An explanation of the GAF
score assigned, and the rationale for
all opinions expressed by the examiner
should be clearly explained.
Furthermore, the examiner must provide
a medical opinion regarding the
sizeable discrepancy between the GAF
scores assigned to the veteran on
December 20, 1999 and December 21,
1999.

Moreover, upon examination of the
veteran, the examiner should render an
opinion as to the effect that the
service-connected PTSD has, if any, on
his earning capacity.  The examiner
should further comment as to the
veteran's current level of occupational
impairment solely due to his PTSD, and
as to other alternative types of
employment recommended for the veteran,
if any, given each disability.
Moreover, the examiner should render an
opinion as to whether his PTSD alone
has caused marked interference with the
veteran's employment, or the need for
frequent periods of hospitalization.
It is requested that the VA specialist
reconcile any contradictory evidence
regarding the above questions.  All
pertinent clinical findings and the
complete rationale for all opinions
expressed should be set forth in a
written report.

4.  The veteran should be given
adequate notice of the requested
examination, which includes advising
him of the consequences of his failure
to report to the examination.  If he
fails to report to the examination,
this fact should be noted in the claims
folders and a copy of the scheduling of
examination notification or refusal to
report notice, whichever is applicable,
should be obtained by the RO and
associated with the claims folders.

5.  Thereafter, the RO must review the
claims folders and ensure that all of the
foregoing development efforts have been
conducted and completed in full.  If any
development is incomplete, appropriate
corrective action is to be implemented.
If the examination report is deficient in
any manner or fails to include adequate
responses to the specific clinical
findings/opinions requested, it must be
returned to the examiner for corrective
action.  38 C.F.R. � 4.2 (2003).  Remand
instructions of the Board are neither
optional nor discretionary.  Full
compliance with such instructions is
mandated by law, per Stegall v. West, 11
Vet. App. 268 (1998).

6.  After completion of the above, the RO
should readjudicate the appellant's claim
seeking entitlement to a disability
evaluation in excess of 30 percent,
effective as of April 1, 1998, for PTSD,
specifically considering the criteria
listed in the VA Rating Schedule for PTSD
(Diagnostic Code 9411).  In addition, the
RO should take into consideration the
holding in Mittleider v. West, 11 Vet.
App. 181 (1998) (when it is not possible
to separate the effects of the service-
connected condition from a nonservice-
connected condition, 38 C.F.R.
� 3.102 clearly dictates that such signs
and symptoms be attributed to the
service-connected condition).
Furthermore, the RO's consideration of
referring the service-connected PTSD
claim for extraschedular evaluations
under 38 C.F.R.� 3.321(b)(1) must be
documented on readjudication.

7.  If the determination remains
unfavorable to the veteran, he should be
provided with a supplemental statement of
the case and be afforded an opportunity
to respond before the case is returned to
the Board for further review.

Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order.  The
Board intimates no opinion as to the outcome of this case.
The veteran need take no action until so informed.  The
purpose of this REMAND is to ensure compliance with due
process considerations.

The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal.  Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. � 3.655 (2003)
failure to cooperate by attending the requested VA
examination may result in an adverse determination.  See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

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

This claim must be afforded expeditious treatment.  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 Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. �� 5109B, 7112).

_________________________________________________
	A. BRYANT
	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) (2003).


judge_norm: RONALD R BOSCH

text: This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).

text:
Citation Nr: 0420000
Decision Date: 07/23/04    Archive Date: 08/04/04

DOCKET NO.  04-09 538	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri

THE ISSUE

Entitlement to service connection for Meniere's disease.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Mark J. Swiatek, Counsel

INTRODUCTION

The veteran had active military service from August 1944 to
May 1946.

This matter is on appeal to the Board of Veterans' Appeals
(Board) from a June 2003 rating decision of the Department of
Veterans' Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.  The RO denied entitlement to service connection
for Meniere's disease.

In July 2004, a Deputy Vice Chairman of the Board granted the
representative's motion to advance the veteran's case on the
Board's docket in view of his age.  38 U.S.C.A. � 7101 (West
2002); 38 C.F.R. � 20.900(c) (2003)

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify you if
further action is required on your part.

REMAND

This claim must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA) AMC.  The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC) for
additional development or other appropriate action must be
handled in an expeditious manner.  See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, � 707(a), (b), 117 Stat.
2651 (2003) (codified at 38 U.S.C. �� 5109B, 7112).

The CAVC has held that section 5103(a), as amended by the
Veterans Claims Assistance Act of 2000 (VCAA) and � 3.159(b),
as recently amended, require VA to inform a claimant of which
evidence VA will provide and which evidence claimant is to
provide, and remanding where VA failed to do so.  See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
38 U.S.C.A. �� 5100, 5102, 5103, 5103A and 5107 (West 2002);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2002).

The Board notes that the RO in March 2003 issued a VCAA
notice letter to the veteran that specified who was
responsible for obtaining relevant evidence or information as
to the claim that is on appeal to the Board.  See e.g.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles
v. Principi, 16 Vet. App. 370 (2002).

The appellant argues that Meniere's disease is related to
acoustic trauma he sustained during military service.  The
record shows that the RO in May 2003 granted service
connection for bilateral hearing loss and tinnitus on the
basis that the disorders could not be reasonably
disassociated from the noise exposure the veteran sustained
during military service.

The RO obtained private medial records that referred to
dizziness and vertigo on several occasions but did not
contain an opinion that would rule out a relationship to
military service.

The VA examiner in April 2003, a physician's assistant (PA),
opined that Meniere's disease had nothing to do with the
veteran's military career.  However the examiner did not
provide any rationale to explain the basis for this
conclusion.

The representative in May 2004 cited to a medical reference
that listed abrupt acoustic trauma as a probable causative
factor in Meniere's disease.  In June 2004 the representative
argued that the complexity of the case supported referral of
the case to an independent medical expert as provided for in
38 C.F.R. � 3.328 (2003).

The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations.  See 38 U.S.C.A. �� 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. �� 3.102, 3.156(a), 3.159,
and 3.326(a)).

Accordingly, the case is remanded to the VBA AMC for further
action as follows:

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

2.  The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. �� 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183,
� 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (codified at 38 U.S.C.A. � 5103),
and any other applicable legal precedent.
Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate his
claim and inform him whether he or VA
bears the burden of producing or
obtaining that evidence or information,
and of the appropriate time limitation
within which to submit any evidence or
information.  38 U.S.C.A. � 5103(a) and
(b) (West 2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002).

3.  The VBA AMC should contact the
veteran and request that he identify all
healthcare providers, VA and non-VA,
inpatient and outpatient, who have
treated him for Meniere's disease since
service.  He should be requested to
complete and return the appropriate
release forms so that VA can obtain any
identified evidence.  All identified
private treatment records should be
requested directly from the healthcare
providers.

Regardless of the veteran's response, the
VBA AMC should obtain all outstanding VA
treatment reports.

All information which is not duplicative
of evidence already received should be
associated with the claims file.

4.  If the VBA AMC is unable to obtain
any of the relevant records sought, it
shall notify the veteran that it has been
unable to obtain such records by
identifying the specific records not
obtained, explaining the efforts used to
obtain those records, and describing any
further action to be taken with respect
to the claim.  VCAA, Pub. L. No. 106-475,
� 3(a), 114 Stat. 2096, 2097-98 (2000)
(codified at 38 U.S.C. � 5103A(b)(2)).

5.  The VBA AMC should arrange for a VA
special otolaryngology examination by a
specialist, including on a fee basis if
necessary, for the purpose of
ascertaining the nature, extent of
severity, and etiology of the veteran's
Meniere's disease.

The claims file and a separate copy of
this remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination.

The examiner must annotate the
examination report that the claims file
was in fact made available for review in
conjunction with the examination.  Any
further indicated special studies must be
conducted.

It is requested that the examiner address
the following medical issues:

(1) Is it at least as likely as not that
the veteran's Meniere's disease is
related to service on any basis to
include abrupt acoustic trauma or a
service-connected disability such as
hearing loss and/or tinnitus, or if
preexisting service was aggravated by
service or aggravated by a service-
connected disability?

(2) If not related to service or service-
connected disability on any basis, what
is the most likely etiology for the
veteran's Meniere's disease?

The specialist should include the
rationale for any opinions and
conclusions expressed and refer to facts
specific to the veteran's case and
comment on the medical text reference to
abrupt acoustic trauma as a probable
causative factor in Meniere's disease
that has been cited in support of the
claim.

6.  Thereafter, the VBA AMC should review
the claims file to ensure that all of the
foregoing requested development has been
completed.

In particular, the VBA AMC should review
the requested examination report(s) and
required medical opinions to ensure that
they are responsive to and in complete
compliance with the directives of this
remand and if they are not, the VBA AMC
should implement corrective procedures.

The Board errs as a matter of law when it
fails to ensure compliance, and further
remand will be mandated.  Stegall v.
West, 11 Vet. App. 268 (1998).

7.  After undertaking any further
development deemed essential in addition
to that specified above, including
development authorized under 38 C.F.R.
� 3.328 if deemed warranted, the VBA AMC
should readjudicate the claim of
entitlement to service connection for
Meniere's disease.

If the benefit requested on appeal is not granted to the
veteran's satisfaction, the VBA AMC should issue 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 pertinent to the claim currently on
appeal.  A reasonable period of time for a response should be
afforded.  Thereafter, the case should be returned to the
Board for final appellate review, if in order.  By this
remand, the Board intimates no opinion as to any final
outcome warranted.  No action is required of the veteran
until he is notified by the VBA AMC; however, the veteran is
hereby notified that failure to report for any scheduled VA
examination(s) without good cause shown may adversely affect
the
outcome of his claim of entitlement to service connection for
Meniere's disease, and may result in its denial.  38 C.F.R.
� 3.655 (2003).

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

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board is appealable to the CAVC.  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) (2003).