judge_norm: MICHAEL E KILCOYNE

condition: hip

text:
Citation Nr: 0115000
Decision Date: 05/31/01    Archive Date: 06/04/01

DOCKET NO.  00-02 696	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim for service connection for a right hip
disability, and if so, whether service connection is
warranted.

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

D. A. Saadat, Counsel

INTRODUCTION

The veteran had active military service from March 1975 to
November 1975.

This case comes to the Board of Veterans' Appeals (Board)
from an October 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia, which determined that new and material evidence had
not been submitted to reopen a claim for service connection
for a right hip disability.  The veteran and his spouse
testified at the RO before a hearing officer in February
2000.  On a Form 9 filed in January 2000, the veteran had
requested a hearing before a Board member at the RO.  This
hearing was scheduled to take place on September 12, 2000,
but the veteran failed to appear.

FINDINGS OF FACT

1.  The veteran was last denied service connection for a hip
disability by a February 1977 RO decision and was given
notice of said decision and of appellate rights and
procedures in a letter dated on March 1, 1977.

2.  The veteran did not perfect an appeal concerning the
February 1977 rating decision.

3.  Evidence received since the February 1977 rating decision
includes VA treatment records, written statements from the
veteran and several friends, and the testimony of the veteran
and his spouse at a local hearing in February 2000.

4.  Evidence received since the February 1977 rating decision
has not been considered previously and is so significant that
it must be reviewed in connection with the current claim.

CONCLUSIONS OF LAW

1.  The February 1977 rating decision which denied service
connection for a hip disability is final.  38 U.S.C.A. � 7105
(c) (West 1991).

2.  New and material evidence has been presented to reopen
the claim of entitlement to service connection for a right
hip disability.  38 U.S.C.A. � 5108 (West 1991); 38 C.F.R.
� 3.156(a) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

At the time of the RO's February 1977 rating decision, the
evidence of record included the veteran's service medical
records, which reflected that in conjunction with a January
1975 examination, he reported that he had dislocated both
hips playing football four years before, that this had been
fixed with pins, and that it had been no trouble since.  The
veteran denied any history of leg cramps, broken bones,
arthritis, rheumatism, or bursitis, bone, joint or other
deformity, or lameness.  Upon examination, the veteran's
lower extremities, spine, and "other musculoskeletal" were
normal.

However, because of his prior hip condition, the veteran was
referred for an orthopedic consultation, which took place in
April 1975.  The orthopedist noted that the veteran had
undergone a Knowles pinning of bilateral slipped capital
femoral epiphyses four years before, and that he had
experienced no pain or disability since.  Ranges of motion of
the veteran's bilateral hip joints were as follows: flexion
contracture to 0 degrees bilaterally, internal rotation in
flexion to 10 degrees bilaterally, external rotation in
flexion to 40 degrees bilaterally, internal rotation in
extension to 5 degrees bilaterally, and external rotation in
extension to 35 degrees bilaterally.  The orthopedist noted
that an X-ray had revealed 4 Knowles pins in the bilateral
hips with good coverage of the heads.  There was mild post
displacement of the heads and neck, although the epiphyses
were completely closed.  The impression was healed bilateral
slipped capital femoral epiphyses with Knowles pins in situ.
The veteran was deemed to be fit for service.

In July 1975, the veteran sought treatment at a dispensary,
complaining of a sore left hip.  He said that he had twisted
his hips while running two days before.  The veteran's prior
history of dislocation was noted.  Examination revealed range
of motion of the left leg to be within normal limits.  There
was no edema or crepitus.  The veteran was given Tylenol and
a limitation of duty (no running) for twenty-four hours.
Subsequently in July 1975, the limitation of duty (no
running) was renewed for four days.

In August 1975, the veteran sought outpatient treatment for
low back pain, but did not specifically mention any hip
symptoms.  Subsequently in August 1975, the veteran asked for
a medical officer's evaluation, stating that he did gunner
work in artillery and wanted his MOS changed due to his hip
symptoms.

The veteran underwent another orthopedic consultation
examination in September 1975.  Ranges of motion of the
bilateral hip joints were as follows: flexion contracture to
0 degrees bilaterally, internal rotation in flexion to 5
degrees bilaterally, external rotation in flexion to 60
degrees bilaterally, internal rotation in extension to 5
degrees bilaterally, and external rotation to 40 degrees
bilaterally.

The veteran underwent a Medical Board examination in October
1975.  He reported that since enlistment, he had been unable
to perform his assigned duties because of continued bilateral
hip pain which was relieved by rest.  He denied having
sustained any injury while on active duty.  Examination of
the hips revealed the absence of a flexion contracture.
Internal rotation in flexion was to 5 degrees bilaterally,
external rotation in flexion was full, internal rotation in
extension was to 5 degrees bilaterally, and external rotation
to 40 degrees bilaterally.  Trendelenburg tests were negative
and the veteran's gait revealed a very slight bilateral roll.

An X-ray revealed an enlarged femoral head on the right with
slight posterior displacement and a similar appearing left
femoral head.  There were four retained metallic pins
traversing the femoral neck on the right well located within
the femoral head.  There were approximately five thinner
metallic pins traversing the left femoral neck well located
within the head.  There was sclerosis of the right and left
acetabula, greater on the right than on the left.  Early cyst
formation in the right and left femoral heads was also noted,
consistent with early degenerative arthritis following
slipped capital femoral epiphyses.

The Medical Board concluded that the veteran was unable to
perform the assigned duties of his rank because of bilateral
hip pain, secondary to early degenerative changes existing
prior to enlistment.  He was deemed unfit for full duty by
reason of physical disability which was neither incurred in
nor aggravated by a active duty.  The Medical Board
recommended that the veteran be discharged.

In February 1976, the veteran filed a claim for service
connection for arthritis of the hips and he underwent a VA
examination in December 1976.  His prior medical history was
recounted, and he reported having continued aches and pains.
An X-ray of the pelvis and hips revealed bilateral healed
cervical fractures with slight residual femoral deformity and
degenerative joint disease.  Following the examination, the
veteran was diagnosed as having bilateral status post-
operative pinning of the femoral heads for slipped capital
femoral epiphysis and degenerative arthritis of the femoral
heads bilaterally secondary to slipped capital femoral
epiphysis.

By a February 1977 rating decision, the RO denied service
connection for degenerative arthritis of the femoral heads
bilaterally secondary to slipped capital femoral epiphysis.
The basis of this denial was that there was no evidence that
his preexisting bilateral hip condition had been aggravated
in service.  The record reflects that the veteran was
provided notice of the February 1977 rating decision in a
letter dated on March 1, 1977, but he did not perfect an
appeal.  Accordingly, the February 1977 rating decision
became final.  38 U.S.C.A. � 7105(c) (West 1991).

Section 5108 of title 38 of the United States Code provides
that, "[i]f new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim."  The regulations provide that 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 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) (2000).

Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service.  38 U.S.C.A. �� 1110, 1131 (West 1991
& Supp. 2000); 38 C.F.R. � 3.303(a) (2000).

In September 1999, the veteran submitted a written statement,
indicating his wish to reopen his claim for service
connection for a right hip disability.  The evidence obtained
in connection with the attempt to reopen includes preprinted,
undated typewritten statements from seven individuals, who
indicated that they had known the veteran for a period
ranging from 14 to 29 years.  Each of the statements includes
the following text:

[The veteran] did not appear to be having
any difficulty walking or problems with
his limbs the last time I saw him prior
to his enlisting in the service.  Since
he has come home, from the service, he
has a decided limp in his walk.

The evidence also includes VA medical records and the
testimony of the veteran and his spouse at a local hearing in
February 2000.

The Board concludes that the veteran has presented new and
material evidence, in the form of the seven typewritten lay
statements he submitted with his claim to reopen in September
1999.  Evidence received subsequent to a final rating
decision is presumed credible for the purposes of reopening a
veteran's claim unless it is inherently false or untrue, or
it is beyond the competence of the person making the
assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1995);
Justus v. Principi, 3 Vet. App. 510, 513 (1992).  See also
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995).

In this case, the seven lay statements are from individuals
who assert that they saw the veteran prior to service
(displaying no difficulty walking) and that since his return
home, they had observed a "decided limp."  For purposes of
reopening the veteran's claim, the Board finds that these
statements are neither inherently false or untrue, and that
they are clearly within the competence of lay persons (i.e.,
these individuals are merely recounting what visible symptoms
they observed, rather than attempting to medically diagnose
the veteran's condition or opining whether his preexisting
hip condition was aggravated in service).  The petition to
reopen is granted.  Accordingly, consideration may be given
to the entire evidence of record without regard to any prior
denial.

ORDER

The veteran's claim of entitlement to service connection for
right hip disability has been reopened.  The appeal is
granted to this extent, subject to the following remand
directions of the Board.

REMAND

Additional development is needed prior to appellate
disposition of this case.

As detailed above, the claims file includes several lay
statements suggesting that the veteran's preexisting (and
apparently asymptomatic) hip condition was aggravated during
his period of active duty, leading him to walk with a
"decided limp" upon discharge.  These statements suggest
that the veteran's right hip condition may have been
aggravated during his period of active duty.  While the
veteran underwent a VA orthopedic examination in December
1976, the examiner did not proffer an opinion as to whether
the veteran had a preexisting hip condition which was
aggravated during service.  A new VA orthopedic examination
is therefore necessary.

To ensure that the veteran's claim will receive a fully
informed evaluation, clinical data reflecting any treatment
of the veteran's right hip, since February 1977 (the date of
the final RO rating decision), must be obtained and reviewed.
38 C.F.R. �� 4.1, 4.2 (2000).  The veteran indicated in his
claim to reopen that he was scheduled for a hip replacement
procedure at a VA medical facility.  If this procedure was
undertaken, the RO should obtain all relevant surgical and
hospitalization records and associate them with the claims
file.

In addition to the foregoing, this Remand will also give the
regional office (RO) an opportunity to consider the
implications that the Veterans Claims Assistance Act of 2000,
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) has on
this claim.  The VCAA was signed into law in November 2000,
and it redefined the obligations of VA with respect to the
duty to assist and included an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  This law also
eliminated the concept of a well-grounded claim and
superseded the decision of the United States Court of Appeals
for Veterans Claims 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.  Since this change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
and not yet final as of that date, it applies to the current
appeal.  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).

Although the Board has already identified above the
additional development it believes to be necessary in the
veteran' current appeal, the responsibility to fulfill the
duty to assist and notification requirements of the VCAA is
primarily a function of the RO in the first instance, and it
will be left to that body to determine whether even further
development is necessary in this case.  (This should be
determined in a manner consistent with guidance that is
provided by the Department, including, General Counsel
precedent opinions, as well as any binding and pertinent
court decisions that are subsequently issued.)

Accordingly, this case is REMANDED for the following:

1.  Any pertinent VA medical records
documenting treatment of the veteran's
right hip disability, subsequent to
February 1977, which have not already
been associated with the claims file,
should be obtained and made part of the
record.  If the veteran has actually
undergone a right hip replacement, the
RO should obtain all relevant surgical
and hospitalization records.

2.  The RO should contact the veteran and
ask him to furnish the names and
addresses of private sources of any
treatment he has received for right hip
symptoms since February 1977.  After
obtaining the appropriate releases,
copies of the records should be obtained
and associated with the claims folder.

3.  Following completion of the above
actions, the veteran should be afforded a
VA orthopedic examination.  The claims
folder, including the veteran's service
medical records and this Remand, must be
made available to the examiner for review
before the examination.  All indicated
tests and studies should be performed.

The examiner should respond to the
following:

a.  Does the veteran have a current
right hip condition?

b.  If so, is it related to the
right hip problems noted in service?
(If not, the inquiry may stop.)

c.  If the veteran currently has a
right hip disability that is related
to the hip complaints noted in
service, is it also related to the
right hip problems noted prior to
service?  (If not, the inquiry may
stop.)

d.  If the current right hip
disability is related to the in-
service and pre-service right hip
problems, the examiner should opine
whether it is at least as likely as
not that the veteran's pre-service
right hip condition underwent an
increase in severity during active
duty.  If so, the examiner should
opine as to whether it is
undebatable that the increase in
severity was due to the natural
progress of the condition.

If the examiner agrees or disagrees with
any opinion of record, he or she should
give the reasons therefore.

4.  Thereafter, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full.  If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report.  If the requested
examination does not include fully
detailed descriptions of pathology and
all test reports, special studies or
adequate responses to the specific
opinions requested, the report must be
returned for corrective action.

5.  The RO should also ensure that all
notification and development action
required by the Veterans Claims
Assistance Act of 2000 is completed with
respect to the veteran's claim for
service connection.

6.  When the above developments have been
completed, the case should be reviewed.
If the decision concerning entitlement to
service connection for a right hip
disability remains adverse to the
veteran, he and his representative (if
any) should be issued a supplemental
statement of the case.  The veteran and
his representative (if any) should be
afforded the requisite opportunity to
respond.

The appellant has the right to submit additional evidence and
argument on the matter 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 (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 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 E. KILCOYNE
	Acting Member, Board of Veterans' Appeals


series: legacy

judge_norm: S L KENNEDY

judge_role: Member, Board of Veterans' Appeals

disposition: denied

condition: eye

text:
Citation Nr: 0118000
Decision Date: 07/10/01    Archive Date: 07/16/01

DOCKET NO.  99-22 573	)	DATE
	)
	)

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

THE ISSUE

Whether a November 1948 rating decision, in which the
Brooklyn, New York, Regional Office (RO) severed service
connection for psychogenic asthenic reaction, should be
revised or reversed on the grounds of clear and unmistakable
error (CUE).

REPRESENTATION

Veteran represented by:	Kenneth M. Carpenter, Attorney

ATTORNEY FOR THE BOARD

L. J. Nottle, Counsel

INTRODUCTION

The veteran had active service from August 1946 to January
1947.  His claim comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Louis, Missouri.

The Board notes that, in February 2000, the veteran's
representative submitted additional argument to the Board in
support of the veteran's claim.  Inasmuch as the
representative waived initial RO consideration of this
evidence, the Board will consider it in the first instance in
adjudicating the veteran's claim.

FINDINGS OF FACT

1.  In March 1947, the New York, New York, Regional Office
granted the veteran entitlement to service connection for
"psychogenic asthenic reaction, manifested by weakness,
fatigue, lack of ambition and energy, tachycardia, tenseness
and apathy - rated as neurasthenia."

2.  In November 1948, the RO severed service connection for
the veteran's psychogenic asthenic reaction.

3.  The veteran did not appeal the RO's November 1948
decision.

4.  The correct facts, as they were known at that time, were
before the RO in November 1948.

5.  The RO correctly applied the statutory and regulatory
provisions extant in November 1948.

CONCLUSIONS OF LAW

1.  The November 1948 rating decision, in which the RO
severed service connection for psychogenic asthenic reaction,
is final.  38 U.S.C.A. � 7105(c) (West 1991); 38 C.F.R. ��
20.302(a), 20.1103 (2000).

2.  The November 1948 rating decision, in which the RO
severed service connection for psychogenic asthenic reaction,
does not involve CUE.  38 C.F.R.
� 3.105(a) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The issue before the Board is whether a November 1948 rating
decision, in which the RO severed service connection for
psychogenic asthenic reaction, should be revised or reversed
on the grounds of CUE.  During the pendency of the veteran's
appeal, new legislation was passed that enhances the VA's
duties to notify a claimant of the evidence necessary to
substantiate a claim and to assist a claimant in the
development of a claim.  See Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment of the VCAA and which are not final as of
that date.  VCAA, Pub. L. No. 106-475, � 7, subpart (a), 114
Stat. 2096, 2099 (2000).

Where the law or regulations change after a claim has been
filed or reopened but before the administrative or judicial
appeal process is completed, the version of the law or
regulations most favorable to the appellant applies unless
Congress provides otherwise.  Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1990).  In this case, the St. Louis, Missouri,
Regional Office has not developed the veteran's claim
pursuant to the VCAA.  However, prior to the enactment of the
VCAA, the St. Louis, Missouri, Regional Office took action
that is consistent with the notification and assistance
provisions of the VCAA.  Therefore, the Board's decision to
proceed in adjudicating the veteran's claim does not
prejudice the veteran in the disposition thereof.  See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

First, as required by the VCAA, in a rating decision dated
October 1998 and a statement of the case issued in June 1999,
the St. Louis, Missouri, Regional Office notified the veteran
of the evidence needed to substantiate his claim, of the
regulations pertinent to his claim, and of the reasons for
which it had denied his claim.  See VCAA, Pub. L. No. 106-
475, � 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified
as amended at 38 U.S.C. �� 5102, 5103).  Second, with regard
to the duty to assist, the St. Louis, Missouri, Regional
Office afforded the veteran an opportunity to submit evidence
and present testimony in support of his claim, and accepted
and reviewed all evidence identified by the veteran and his
representative as being pertinent to the veteran's claim.
Although the VCAA requires the VA to assist the veteran in
obtaining all evidence necessary for the equitable
disposition of his claim, see VCAA, Pub. L. No. 106-475, �
3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as
amended at 38 U.S.C. �� 5103A), neither the veteran, nor his
representative, has identified any outstanding evidence that
needs to be obtained in support of the veteran's claim.

Inasmuch as the St. Louis, Missouri, Regional Office notified
the veteran of the evidence needed to substantiate his claim
and fully developed all relevant evidence necessary for the
equitable disposition of that claim, actions which are
required under the VCAA, a Remand to comply with the VCAA
would serve no useful purpose.  See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (holding that strict adherence to
legal requirements does not dictate an unquestioning, blind
adherence in the face of overwhelming evidence in support of
the result in a particular case because such adherence would
impose additional burdens on the VA with no benefit flowing
to the veteran); see also 38 C.F.R. � 20.1102 (2000).

The basic facts of this case are not in dispute.  In March
1947, the New York, New York, Regional Office granted the
veteran entitlement to service connection for "psychogenic
asthenic reaction, manifested by weakness, fatigue, lack of
ambition and energy, tachycardia, tenseness and apathy -
rated as neurasthenia," and assigned this disability an
evaluation of 30 percent.  In November 1948, the RO severed
service connection for this disability.  The veteran did not
appeal the RO's November 1948 decision; therefore, the
decision is final.  38 U.S.C.A. � 7105(c) (West 1991); 38
C.F.R. �� 20.302(b), 20.1103 (2000).  The veteran now claims
that the November 1948 decision should be revised or reversed
on the basis that it involved CUE.

Previous determinations that are final and binding will be
accepted as correct in the absence of CUE.  38 C.F.R. �
3.105(a) (2000).  As the RO's November 1948 rating decision
is final, it is subject to collateral attack under the theory
of CUE.  However, for the reasons that follow, the Board
concludes that this decision did not involve CUE.

The United States Court of Appeals for Veterans Claims
(Court) has held that, for there to be a valid claim of clear
and unmistakable error, either the correct facts, as they
were known at the time, were not before the adjudicator or
the statutory or regulatory provisions extant at that time
were incorrectly applied.  In addition, the error must be
"undebatable" and of the sort "which, had it not been made,
would have manifestly changed the outcome at the time it was
made."  A determination that there was CUE must be based on
the record and law that existed at the time of the prior
adjudication in question.  Damrel v. Brown, 6 Vet. App. 242,
245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310,
313-14 (1992) (en banc)).

A mere difference of opinion in the outcome of the
adjudication or a disagreement as to how facts were weighed
and evaluated does not provide a basis upon which to find
that VA committed administrative error during the
adjudication process.  See Luallen v. Brown, 8 Vet. App. 92
(1995); Russell, 3 Vet. App. at 310; Damrel v. Brown, 6 Vet.
App. 242 (1994).  The alleged error must be of fact or of
law, and when called to the attention of later reviewers
compels the conclusion, to which reasonable minds could not
differ, that the result would have been manifestly different
but for the error.  Thus, even where the premise of error is
accepted, if it is not absolutely clear that a different
result would have ensued, the error complained of cannot be,
ipso facto, clear and unmistakable error.  Fugo v. Brown, 6
Vet. App. 40, 43-44 (1993), en banc review denied, 6 Vet.
App. 162 (1994).

In this case, the correct facts, as they were known at that
time, were before the RO in November 1948.  When the RO
rendered its decision, the claims file consisted of: the
veteran's service medical records, which included, in
pertinent part, an August 1946 enlistment examination,
consultation reports and nursing and progress notes dated
from September 1946 to January 1947, a December 1946
separation examination, and a Certificate of Disability for
Discharge (CDD); a February 1948 Report of Neuropsychiatric
Examination; and an October 1948 Social Service Study.
Neither the veteran, nor his representative, argues that the
factual record available to the RO in November 1948 was
either incomplete or incorrect.  Accordingly, the veteran's
CUE claim is not sustainable on the basis that the correct
facts, as known in November 1948, were not before the RO.

Instead, the veteran's representative, on the veteran's
behalf, argues that a finding of CUE is warranted on one of
four bases: (1) There was no medical evidence of record in
November 1948 to support the RO's finding that the veteran's
psychiatric disability preexisted service, and at that time,
under 38 C.F.R. 3.9(d) (1948), medical evidence was needed to
establish that the RO clearly and unmistakably erred in
granting the veteran service connection in March 1947; (2)
The RO did not apply the presumption of soundness to the
veteran's claim; (3) The RO did not apply the presumption of
aggravation to the veteran's claim or, in the alternative,
the RO did not rebut this presumption with clear and
convincing evidence; and (4) The RO's severance constitutes a
grave procedural error that violated the veteran's due
process rights.

The Board acknowledges the representative's assertions, but
finds that the RO correctly applied the statutory and
regulatory provisions extant in November 1948.  In 1948, the
authority to sever service connection upon the basis of clear
and unmistakable error (the burden of proof being upon the
Government) was vested in agencies of original jurisdiction
in central office and branch offices.  38 C.F.R. � 3.9(d)
(1948).  No rating board was permitted to:

reverse or amend, except upon new and
material evidence, a decision rendered by
the same or any other rating board, or by
any appellate authority, except where
such reversal or amendment was clearly
warranted by a change in law or by a
specific change in interpretation thereof
specifically provided for in a Veterans'
Administration issue: Provided, That a
rating board may reverse or amend a
decision by the same or any other rating
board where such reversal or amendment is
obviously warranted by a clear and
unmistakable error shown by the evidence
in file at the time the prior decision
was rendered, but in each such case there
shall be attached to each copy of the
rating a signed statement by the rating
board definitely fixing the
responsibility for the erroneous
decision.

38 C.F.R. � 3.9(a) (1948).

Where the severance of service connection was considered
warranted, the claimant was to be immediately notified in
writing of the contemplated action and the detailed reasons
therefor and was to be given a reasonable period, not to
exceed sixty days from the date on which such notice was
mailed to the last address of record, for the presentation of
additional evidence pertinent to the question.  38 C.F.R. �
3.9(d) (1948).

In 1948, the RO satisfied the procedural requirements noted
above when it severed service connection for the veteran's
psychiatric disability.  After the New York, New York,
Regional Office granted the veteran service connection for
psychogenic asthenic reaction in March 1947 based on a
finding that this disability was incurred in service, the RO
undertook an independent review of the veteran's claim.  The
RO
afforded the veteran a VA examination of his disability and
attempted to obtain pre-service information from the
Department of Welfare, a hospital social worker, and the
veteran's high school principal, all in Brooklyn, New York.
During this review, the RO focused on the January 1947 CDD,
which indicates that the veteran's disability preexisted
service and was not aggravated therein.  Based on this
information, the RO determined that severance of service
connection for the veteran's psychiatric disability was
warranted.  In a letter dated June 1948, the RO notified the
veteran in writing of the proposed severance, and provided
the veteran the detailed reasons for the contemplated action
and a period of sixty days from the date of the notice to
submit evidence refuting the finding that the psychiatric
disability was not incurred in or aggravated by service.

In June 1948, in response to the RO's notice, a service
representative requested that the veteran be afforded a
social survey for the purpose of determining the true nature
of the veteran's psychiatric disability.  The RO fulfilled
the service representative's request, and in October 1948,
the veteran underwent a social service study.  Thereafter, in
a rating decision dated November 1948, the RO considered all
of the evidence of record, including the report of the social
service study, and determined that the March 1947 grant of
service connection for "psychoneurogenic asthenic reaction,
manifested by weakness, fatigue, lack of ambition and energy,
tachycardia, tenseness and apathy - rated as neurasthenia"
had been clearly and unmistakably erroneous.  Based on that
finding, it severed service connection for that disability.

Inasmuch as the RO complied with the procedural requirements
of 38 C.F.R.
� 3.9(d) in November 1948, the question becomes whether,
under 38 C.F.R. � 3.9(a), (d), the RO properly severed
service connection based on clear and unmistakable error in
the March 1947 grant of service connection.  To judge this
matter, it is necessary to review the 1948 law and
regulations pertaining to claims for service connection,
particularly those referring to the presumptions of soundness
and aggravation.

In 1948, the pertinent law was set forth in Veterans
Regulation (VR) 1(a), Part I, paragraph I(a), as amended by
57 Stat. 556 (July 13, 1943).  This provision provided that
benefits were to be paid to persons suffering from
disabilities resulting from personal injury or disease
contracted in line of duty, or for aggravation of a
preexisting injury or disease contracted or suffered in line
of duty.  VR 1(a), Part I, paragraph I(b) provided that:

[E]very person employed in the active
military or naval services shall be taken
to have been in sound condition when
examined, accepted, and enrolled for
service, except as to defects,
infirmities, or disorders noted at the
time of examination, acceptance, and
enrollment or where clear and
unmistakable evidence demonstrates that
the injury or disease existed before
acceptance and enrollment and was not
aggravated by such active military or
naval service.

VR 1(a), Part I, paragraph I(b) (1948); see also Akins v.
Derwinski, 1 Vet. App. 228, 231 (1991) (setting forth text of
VR 1(a), Part I, para. 1(b)).

"Clear and unmistakable evidence" was defined by VA
regulation as "evidence which makes it obvious or manifest .
. . that the injury or disease under consideration existed
prior to acceptance and enrollment for service".  38 C.F.R.
� 2.1063(d) (1948).  In this case, in 1948, the RO presumed
that the veteran was in sound condition at the time of his
entrance into service because his August 1946 enlistment
examination did not note the presence of any psychiatric
disability.  The RO then considered whether there was clear
and unmistakable evidence demonstrating that the veteran's
psychiatric disability existed before acceptance and
enrollment into the service.  The RO determined that the
presumption of soundness was rebutted by the following
evidence: (1) the notation on the veteran's CDD (signed by
four servicemen in the Medical Corps) that the veteran's
disability had existed prior to service; (2) clinical records
containing a reported history that the veteran had never been
robust, emotionally or physically, became fatigued and
developed shortness of breath easily, and had always drifted
from job to job and had not maintained employment for a long
period of time; and (3) service medical records establishing
that, of his four months and 21 days of service, the veteran
spent only two weeks in training.  The RO clearly analyzed
all of the pertinent facts of record in concluding that there
was clear and unmistakable evidence that the veteran's
psychiatric disability preexisted service.

The RO was next required to consider the applicability of the
presumption of aggravation.  In 1948, the applicable
statutory provision provided that:

[F]or the purposes of paragraph I(a)
hereof [basic entitlement] a preexisting
injury or disease will be considered to
have been aggravated by active military
service as provided for therein where
there is an increase in disability during
active service unless there is a specific
finding that the increase in disability
is due to the natural progress of the
disease.

VR 1(a), Part I, para. 1(d); see also Akins, 1 Vet. App. at
232 (setting forth text of VR 1(a), Part I, para. 1(d)).
Compare 38 C.F.R. � 2.1063(i) (1948) (which does not require
a "specific finding," but rather, provides that "injury or
disease noted prior to service or shown by clear and
unmistakable evidence, including medical facts and
principles, to have had inception prior to enlistment will be
conceded to have been aggravated where such disability
underwent an increase in severity during service unless such
increase in severity is shown by clear and unmistakable
evidence, including medical facts and principles, to have
been due to the natural progress of the disease.")

In this case, in its November 1948 rating decision, the RO
noted, albeit succinctly, the matter of aggravation.
Specifically, after indicating that the grant of service
connection had been clearly and unmistakably erroneous, the
RO restated the CDD's finding that the veteran's preexisting
psychiatric disability was not aggravated in service.  The RO
then listed the evidence in support of this finding,
including service medical records showing that, with the
exception of two weeks of training, the veteran had spent his
brief period of active service in the hospital (primarily for
a condition unrelated to his psychiatric disability) and
undergoing reconditioning.  The RO did not specifically
discuss the applicability of the presumption of aggravation.
However, by focusing on the CDD's notation of no aggravation
and the fact that the veteran had served on active duty for
only two weeks before his initial hospitalization, the RO
appears to have determined that the veteran's psychiatric
disability did not increase in severity during service, and
that therefore, the presumption of aggravation did not
attach.  The Board does not find that the RO's failure to
mention specifically the applicability of the presumption of
aggravation constitutes CUE.  See Dolan v. Brown, 9 Vet. App.
358 (1996) (which discusses the nature of RO review in the
1950s).

[R]eview of RO decisions from the 1950s
indicates that they were generally
briefer than more recent rating
decisions, and often listed not much more
than the most essential facts and the
conclusion of whether or not service
connection was granted.  The requirements
to list evidence considered and give
reasons for decisions at that time were
not nearly as strenuous as they are
today.  It was not until February 1990
that ROs were required by statute to
include the reasons for denying a claim
in their decisions.  38 U.S.C. � 5104(b);
Veterans' Benefits Amendments of 1989,
Pub. L. No. 101-237,
� 115(a)(1), 103 Stat. 2062, 2065-66
(1989).  The requirement that the ROs
list "a summary of the evidence
considered" was first imposed by the
Veteran's Benefits Amendments of 1989.
Ibid.; see Eddy v. Brown, 9 Vet. App. 52,
58 (1996).  Therefore, for the Court to
reopen this claim solely because the RO
did not specifically mention the
presumptions of sound condition and
aggravation in its 1955 decision and did
not clearly articulate the reasons why
each presumption did not attach would
require the Court to presume that the RO
did not properly discharge its official
duties.  See Ashley v. Derwinski, 2 Vet.
App. 62, 64 (1992) (Court must apply the
"presumption of regularity" to
" 'the official acts of public officers,
and in the absence of clear evidence to
the contrary, [must] presume that they
have properly discharged their official
duties.' ") (quoting United States v.
Chemical Foundation, Inc., 272 U.S. 1,
14-15, 71 L. Ed. 131, 47 S. Ct. 1
(1926)).  As the appellant has offered no
"clear evidence" that the RO did not
consider the presumptions of sound
condition and aggravation, the Court
concludes that the RO considered all the
relevant law and evidence.

Id. at 363.  Although the Court engaged in the foregoing
discussion for the purpose of determining whether new and
material evidence had been submitted to reopen a prior claim,
the Board finds that the Court's discussion provides valuable
guidance with regard to the claim now before the Board.
Certainly, in 1948, RO decisions of all types of claims were
equally as brief as those in 1955.  However, the brevity of
such decision does not equate to a failure to consider the
relevant facts or a failure to correctly apply the
appropriate legal criteria.  In this case, in 1948, by
concurring with the CDD opinion that the veteran's
preexisting psychiatric disability was not aggravated in
service, it is clear that the RO considered the presumption
of aggravation.  In any event, neither the veteran, nor his
representative, has offered any clear evidence that the RO
did not consider this presumption.

The evidence of record in 1948 was sufficient to show that
the New York, New York, Regional Office's March 1947 grant of
service connection for a psychiatric disability was clearly
and unmistakably erroneous.  Therefore, under 38 C.F.R.
� 3.9(a), (d) (1948), the RO had authority in November 1948
to sever service connection for that disability.  By so
doing, the RO correctly applied the statutory and regulatory
provisions extant in November 1948.  In light of the
foregoing, the veteran's CUE claim is not sustainable on the
basis that statutory and/or regulatory provisions extant in
1948 were incorrectly applied.

The veteran's representative claims that, in its November
1948 rating decision, the RO grossly misstated the evidence
and the factual realities of the veteran's situation.  He
points out that the RO failed to mention findings in the
October 1948 Social Service Study that the veteran was an
above average student with a superior intelligence rating,
bright, and articulate and instead found that the veteran had
never been robust either mentally, emotionally, or
physically, had very little ambition, became fatigued easily,
etc...and was anti-social.  He also points out that the RO
interpreted the service medical records incorrectly by
considering the veteran's chest pain, for which he was
treated in service in 1946, as evidence of a preexisting
psychiatric disability.  By so asserting, the veteran's
representative is merely disagreeing with how the RO weighed
the evidence available in 1948, and as previously indicated,
disagreement as to how facts were weighed and evaluated does
not provide a basis upon which to find that the RO committed
error.  See Luallen, 8 Vet. App. at 92.  In issuing its
November 1948 rating decision, the RO clearly considered the
Social Service Study and service medical records to which the
representative refers, and weighed the findings of that
evidence with all other evidence of record, particularly the
CDD (signed by servicemen in the Medical Corps), before
concluding that the veteran's disability preexisted service.
Contrary to the representative's assertion set forth in his
notice of disagreement and substantive appeal, the RO did not
so conclude based on mere conjecture or without the benefit
of medical evidence.

The representative also claims that, in 1948, there was no
medical evidence of record to support the finding that the
veteran's psychiatric disability preexisted service, and that
the RO erred by so concluding based solely on a history
reported by the veteran.  To support his assertion, he refers
to 38 C.F.R. � 3.9(d) (1948) for the proposition that, in
1948, the RO was required to prove that severance of service
connection was necessary based on clear and unmistakable
error, and that proper medical evidence was needed to prove
clear and unmistakable error.  The representative is correct
that, in 1948, the RO was required to prove that severance of
service connection was necessary based on clear and
unmistakable error.  However, the portion of the regulation
to which the representative refers to support the need for
medical evidence is inapplicable to the facts of this case.
It provides, in essence, that service connection will not be
severed in any case on a change of diagnosis in the absence
of certification by a proper medical authority.  38 C.F.R.
� 3.9(d) (1948).  In this case, the RO did not sever service
connection on the basis of a change of diagnosis; therefore,
medical certification was not necessary.

In any event, contrary to the representative assertion, the
evidence establishes that the RO based its finding that the
veteran's psychiatric disability preexisted service primarily
on the CDD, which was signed by individuals trained in
medical matters, not on the veteran's reported history.  The
Court has previously accepted notations on a CDD, which, in
this case, includes a finding of preexistence, as sufficient
evidence to rebut the presumption of soundness.  See Sondel
v. West, 13 Vet. App. 213, 218 (1999).

The representative also claims that, after the RO found that
the veteran's psychiatric
disability preexisted service, it should have applied the
presumption of aggravation.
He bases this argument on the following facts: (1) the
veteran was not noted to
have a psychiatric disability on entrance into the service
(which he interprets as
meaning that the disability was asymptomatic at that time);
and (2) in service, his
psychiatric disorder became symptomatic, thereby
necessitating discharge.  Again,
by so asserting, the representative is merely disagreeing
with the manner in which
the RO weighed the evidence of record.  While one could
interpret the evidence
similarly to the representative, the RO chose not to,
instead, finding that the
veteran's psychiatric disability did not increase in severity
during service and that,
accordingly, the presumption of aggravation was not invoked.
The RO's action in
this regard does not constitute CUE.

The representative has submitted the case of Sondel, supra,
to support his assertion that the RO should have applied the
presumption of aggravation and continued the March 1947 grant
of service connection for the veteran's psychiatric
disability on the basis that the record contained no specific
finding that the in-service increase in the severity of the
disability was due to the natural progress of the disability.
See Sondel at 218-220.  However, because the presumption of
aggravation was not invoked in 1948, the matter of whether
the disability increased in severity beyond its natural
progress was irrelevant at that time.  Moreover, the facts of
Sondel differ significantly from the facts of this case.  In
Sondel, the record included a CDD, which indicated that the
veteran's disability preexisted service, but did not contain
a notation addressing the issue of whether the preexisting
disability was aggravated in service.  See Sondel at 214-216.
In this case, the veteran's CDD contains notations of
preexistence and no aggravation.

The representative claims lastly that the RO's November 1948
severance constitutes a grave procedural error that violated
the veteran's due process rights.  He specifically alleges
that the error resulted from the RO's failure to comply with
regulations in effect in 1948.  To the contrary, as
previously indicated, in 1948, the RO complied with the
procedural requirements of 38 C.F.R. � 3.9(d) (1948), in
severing service connection for the veteran's psychiatric
disability, and with all other statutory and regulatory
requirements then in effect.

In summary, the Board finds that, the correct facts, as they
were known at that time, were before the RO in November 1948,
and at that time, the RO correctly applied the statutory and
regulatory provisions then in existence.  Based on these
findings, the Board concludes that the November 1948 rating
decision, in which the RO severed service connection for
psychogenic asthenic reaction, does not involve CUE.  The
veteran's claim for a revision or reversal of that decision
must therefore be denied.

ORDER

CUE not having been shown, the veteran's claim for a revision
or reversal of the RO's November 1948 decision is denied.

	S. L. KENNEDY
	Member, Board of Veterans' Appeals


judge_norm: RICHARD B FRANK

text: The appeal is denied.

text:
Citation Nr: 0119000
Decision Date: 07/20/01    Archive Date: 07/24/01

DOCKET NO.  00-13 327	)	DATE
	)
	)

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

THE ISSUE

Basic eligibility for Department of Veterans Affairs
benefits.

WITNESS AT HEARING ON APPEAL

Appellant and friends

ATTORNEY FOR THE BOARD

T. Francesca Craft, Associate Counsel

INTRODUCTION

The appellant contends that he had active service in the
recognized guerrilla services of the United States Armed
Forces from March 1942 to April 1945.

FINDINGS OF FACT

1.  The RO has obtained all available, relevant evidence
necessary for an equitable disposition of the claimant's
appeal.

2.  The U.S. Army Reserve Personnel Center has certified that
the appellant had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the United States Armed Forces, and the appellant has not
submitted other acceptable evidence of service.

CONCLUSION OF LAW

The appellant does not have qualifying service for VA
benefits.  38 C.F.R. �� 3.1, 3.8, 3.203 (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Background

Veterans Claims Assistance Act

Recently enacted legislation, the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000),
contains extensive provisions modifying the adjudication of
all pending claims.  Karnas v. Derwinski, 1 Vet. App. 308
(1991).  The new law revises the former � 5107(a) of title 38
United States Code to eliminate the requirement that a
claimant come forward first with evidence to well ground a
claim before the Secretary is obligated to assist the
claimant in the developing the facts pertinent to the claim.
The Board notes that this matter has not been subject to the
well grounded claim requirement, and thus those provisions of
the VCAA relating to the elimination of that requirement are
moot.  The other salient features of the new statutory
provisions impose the following obligations on the Secretary
(where they will be codified in title 38 United States Code
is noted in parentheses):

(1) The Secretary must provide application forms and notify
the claimant and the representative, if any, if his
application is incomplete, of the information necessary to
complete the application (38 U.S.C.A. � 5102);

(2) The Secretary must provide the claimant and the
claimant's representative, if any, with notice of required
information and evidence not previously provided that is
necessary to substantiate the claim (38 U.S.C.A. � 5103(a));

(3) The Secretary must indicate which part of the information
and evidence, if any, is to be provided by the claimant and
which portion, if any, the Secretary will attempt to obtain
on behalf of the claimant (38 U.S.C.A. � 5103(a));

(4) The Secretary must make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate the
claim for the benefit sought, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim (38 U.S.C.A. � 5103A(a));

(5) The Secretary must make every reasonable effort to obtain
relevant records (including private records) that the
claimant adequately identifies to the Secretary and
authorizes the Secretary to obtain (38 U.S.C.A. �
5103A(b)(1));

(6) If, after making reasonable efforts to obtain relevant
records, the Secretary is unable to obtain the relevant
records sought, the Secretary shall notify the claimant that
the Secretary is unable to obtain records, and such
notification shall:

	(a) identify the records the Secretary is unable to
obtain;
(b) briefly explain the efforts that the Secretary made
to obtain those
      records; and
(c) describe any further action to be taken by the
Secretary with respect to
                 the claim (38 U.S.C.A. � 5103A(b)(2)).

(7) Whenever the Secretary attempts to obtain records from a
Federal department or agency under this subsection or
subsection (c) [38 U.S.C.A. � 5103A(c)], the efforts to
obtain those records shall continue until the records are
obtained unless it is reasonably certain that such records do
not exist or that further efforts to obtain those records
would be futile (38 U.S.C.A. � 5103A(b)(3)).

(8)  In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (b) [38
U.S.C.A. � 5103A(b)] shall include obtaining the following
records if relevant to the claim:

(a) The claimant's service medical records and, if the
claimant has furnished the Secretary information
sufficient to locate such records, other relevant
records pertaining to the claimant's active military,
naval, or air service that are held or maintained by a
governmental entity (38 U.S.C.A. � 5103A(c)(1)).
(b) Records of relevant medical treatment or examination
of the claimant at Department health-care facilities or
at the expense of the Department, if the claimant
furnishes information sufficient to locate those records
(38 U.S.C.A. � 5103A(c)(2)).
(c) Any other relevant records held by any Federal
department or agency that the claimant adequately
identifies and authorizes the Secretary to obtain (38
U.S.C.A. � 5103A(c)(3)).

(9) In the case of a claim for disability compensation, the
assistance provided by the Secretary under subsection (a) [38
U.S.C.A. � 5103A(a)] shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim (38 U.S.C.A. � 5103A(d)(1)).

(a) The Secretary shall treat an examination or opinion
as being necessary to make a decision on a claim for
purposes of paragraph (1) [38 U.S.C.A. � 5103A(d)(1)] if
the evidence of record before the Secretary, taking into
consideration all information and lay or medical
evidence (including statements of the claimant)-
  	(i) contains competent evidence that the claimant
has a current
 	disability, or persistent or recurrent symptoms of
disability; and
(ii) indicates that the disability or symptoms may
be associated with the claimant's active military,
naval, or air service; but
(iii) does not contain sufficient medical evidence
for the Secretary to make a decision on the claim.

(10) Nothing in this section [38 U.S.C.A. � 5103A] shall be
construed as precluding the Secretary from providing such
other assistance under subsection (a) [38 U.S.C.A. �
5103A(a)] to a claimant in substantiating a claim as the
Secretary considers appropriate (38 U.S.C.A. � 5103A(g)).

(11) Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary (38 U.S.C.A. �
5107).

The Board finds that the requirements of the VCAA have
clearly been satisfied in this matter.  Unlike many questions
subject to appellate review, a claim to establish qualifying
service for purposes of basic eligibility by its very nature
has an extremely narrow focus.  The RO, in the August 2000
and May 2001 supplemental statements of the case, has set
forth the law and facts in a fashion that clearly and
adequately informed the claimant of the very limited and
specific type of evidence needed to substantiate his claim.
The RO requested verification of the appellant's alleged
military service from the U.S. Army Reserve Personnel Center
and received a negative response that the appellant has no
service as a member of the Philippine Commonwealth Army
including the recognized guerrillas in the United States
Armed Forces.  At the U.S. Army Reserve Personnel Center's
request, the RO sought a copy of the PA AGO Form 23
(processing affidavit) from the Adjutant General of the
Philippine Commonwealth Army (Adjutant General) and received
a negative response that no record exists regarding the
appellant.  There plainly is no outstanding Federal
government record that could substantiate the claim.  There
just as plainly is no reasonable possibility that there is
any other evidence that could substantiate the claim by
establishing qualifying service.  Given the circumstances of
this matter, the Board can not find any basis under the VCAA
to defer adjudication.  Moreover, it is literally impossible
to conceive that implementing regulations for the VCAA could
change the picture since in this matter they would have to
change not simply the notice or development requirements, but
also the underlying substantive law outside the VCAA to raise
any prospect that the claimant could substantiate his claim.
Accordingly, the Board finds it may proceed to decide this
matter without prejudice to the claimant.  Bernard v. Brown,
4 Vet. App. 384 (1993).

Factual Background

Based on the appellant's name, date of birth, alleged
enlistment date and alleged discharge date, the U.S. Army
Reserve Personnel Center certified that the appellant has no
service as a member of the Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the
United States Armed Forces.

The Adjutant General's Office, Philippine Commonwealth Army,
had no existing record for the appellant, based on the
appellant's name, rank, date and place of birth, or alleged
organization, Quartermaster Services, 53rd Infantry Regiment.

The appellant submitted several documents and affidavits in
support of his claim.  The appellant's affidavit, dated in
January 1999, summarizes his military activities from March
1942 to April 1945.  He alleges that he was assigned with QMS
Company, 53rd Regiment, Camp Isarog and with 'Bicol Rinconada
Patriots,' a guerrilla organization operating at Rinconada
headquarters in Iraga, Camarines Sur, and then with the
fighting unit of the Second Battalion, 158 Regimental Combat
Team, U.S. 6th Army.  A January 1999 co-affidavit by E.O.V.
and C.P.F. states that they are aware of the appellant's
guerrilla activities and that he served in a guerrilla
organization under Col. T.P. of Goa, Camarines Sur.  Five
affidavits were signed in January 1999 and submitted by
several men, who state that they were inducted with the
appellant into the 53rd Regiment at Camp Isarog in March
1942.  The five affidavits, signed by J.P.B., A.L., L.C.,
F.M.B., Z.B.B., T.P.B., and D.C.P., summarize the appellant's
duty assignments and corroborate the date and service
characterization of his discharge.

According to T.P.B., the overall commander of the 53rd
Regiment at Camp Isarog, the appellant's name appeared on the
general roster that was submitted to the U.S. Army, 2nd
Battalion, 158th Regimental Combat Team for recognition
purposes before the deadline for submissions.

The undated Unit Roster, signed by Major R.G.G. and approved
by Colonel T.B.P. lists 105 men, including the appellant.  An
undated certificate of discharge from the 53rd Infantry
Regiment, 5th Military District, 51st Division, Camp Isarog,
signed by the T.B.P., Major, (Retired) and the appellant,
states that he was relieved from active duty or discharged as
guerrilla personnel in April 1945.  An October 1948 Extract
of Service Records, signed by the appellant and approved by
T.B.P., Colonel (R-Gla. Ret.), corroborates the dates of
induction and discharge, and service characterization.

PVAO-4 form certifies that J.B. is a veteran of World War
II/Philippine Revolution and served with "C" Company, Bicol
Brigade.  The document, issued by the Philippine Veterans
Affairs Office of the Ministry of Defense, states that J.B.'s
name is carried in the Approved Revised Reconstructed
Guerrilla Roster of 1948.  The appellant explained that this
exhibit was submitted to corroborate the affidavits submitted
by J.B. and others.

The veteran was afforded two hearings at the regional level.
At the first hearing in August 2000, the appellant testified
that he did not want a Travel Board hearing.  (Transcript No.
1 (T-1) at pg. 1).  He further testified that he had not
signed a PA AGO Form 23, a processing affidavit.  (T-1 at pg.
3).  Mr. A.P. also testified on the appellant's behalf.  A.P.
testified that he and the appellant were comrades during the
war and that he was at the hearing to verify his service.
(T-1 at pg. 3).  At the hearing held in May 2001, the
appellant testified as follows:

I was a member of the 3rd Battalion.  (Transcript No. 2 (T-2)
at pg. 3).  During liberation, a list was submitted to an
American officer for approval.  (T-2 at pg. 3).  When his
guerrilla outfit was recognized, we learned a Filipino
officer submitted another list and I was excluded.  (T-2 at
pg. 3).  Some others, who weren't veterans, were included on
the list.  (T-2 at pg. 3).  It is my fault if you cannot find
a service record in my name.  (T-2 at pg. 6).

A.L. testified on behalf of the appellant.  He stated that he
is 80 years old and resides in Bo Pinit, Ocampo, Camarines
Sur.  (T-2 at pg. 4).  He is a PVAO pensioner and a World War
II veteran.  (T-2 at pg. 4).  He does not receive VA
benefits.  (T-2 at pg. 4).  He and the appellant served in
the 3rd Battalion, but were separated due to their different
duty assignments and did not meet again until after they had
been released from military service.  (T-2 at pg. 4).  They
saw each other several years ago when the appellant was
filing a claim with VA; he needed some papers to support his
claim, so he looked for me and I helped him.  (T-2 at pg. 5).

II.  Analysis

A "veteran" is a person who served in the active military,
naval, or air service and who was discharged or released
under conditions other than dishonorable.  38 C.F.R.
� 3.1(d).

Persons who served in the Commonwealth Army of the
Philippines are included for compensation, dependency and
indemnity compensation, and burial allowance, from and after
the dates and hours, respectively, when they were called into
service of the Armed Forces of the United States by orders
issued from time to time by the General Officer, U.S. Army,
pursuant to the Military Order of the President of the United
States dated July 26, 1941.  38 C.F.R. � 3.8(c)(1).

For the purpose of establishing entitlement to pension,
compensation, dependency or indemnity compensation, or burial
benefits, the VA may accept evidence submitted by a claimant
or sent directly to the VA by a service department, such as a
DD Form 214, Certificate of Release or Discharge from Active
Duty, or original Certificate of Discharge, without
verification from the service department if the evidence
meets the following conditions:

(1) The evidence is a document issued by
the service department.  A copy of an
original document is acceptable if the
copy was issued by the service department
or if the copy was issued by a public
custodian of records who certifies that
it is a true and exact copy of the
document in the custodian's custody; and

(2) The document contains needed
information as to the length, time and
character of service; and

(3) In the opinion of the VA, the
document is genuine and the information
contained in it is accurate.

38 C.F.R. � 3.203(a).

When the claimant does not submit evidence of service or the
evidence does not meet the above requirements, the VA shall
request verification of service from the service department.
38 C.F.R. � 3.203(c).

A review of the record discloses that the RO preliminarily
determined that the appellant had recognized guerrilla
service.  The RO relied upon the VA Form 21-526, the unit
roster of the 53rd Infantry Regiment, and the Certificate of
Discharge issued by the 53rd Infantry Regiment in making this
determination.  The RO followed up its preliminary finding
with a request to the U.S. Army Reserve Personnel Center for
verification of the appellant's guerrilla service.  The U.S.
Army Reserve Personnel Center requested additional
information, specifically, an "AGO PA Form 23" from the
Philippine Commonwealth Army's Adjutant General.  Pursuant to
the U.S. Army Reserve Personnel Center's request, the RO
contacted the Adjutant General's office and received a
response, which stated that it had no existing record for the
appellant.  The final reply, from the U.S. Army Reserve
Personnel Center was that the appellant had no service as a
member of the Philippine Commonwealth Army or as a recognized
guerilla, in the service of the United States Armed Forces.
Clearly, the certification from the U.S. Army Reserve
Personnel Center does not establish active or recognized
service.  38 C.F.R. ��  3.8, 3.203.  Thus, the Board finds
that the RO properly requested verification of service from
the service department and determined that the appellant had
not satisfied the requirements for establishing basic
eligibility for VA benefits.  38 C.F.R. � 3.203(a), (c).

The Board notes that the veteran has submitted a wealth of
information in an attempt to have his military activities
acknowledged as recognized guerrilla service.  However, for
purposes of establishing entitlement to VA benefits, the VA
is bound by the findings of the service departments with
regard to whether an individual has service with the U.S.
Armed Forces.  See Duro v. Derwinski, 2 Vet. App. 530 (1992).

Given the applicable statutory and regulatory provisions
recited above and the facts of this case, the Board finds
that appellant does not meet the basic eligibility
requirements for VA benefits.  Thus, the appellant's claim
lacks legal entitlement under the applicable provisions.  The
United States Court of Appeals for Veterans Claims has held
that in a case where the law is dispositive, the claim should
be denied because of the absence of legal merit.  Sabonis v.
Brown, 6 Vet. App. 426 (1994).

ORDER

The appeal is denied.

	Richard B. Frank
	Member, Board of Veterans' Appeals


judge_norm: ALAN S PEEVY

text: The appeal is denied.

text:
Citation Nr: 0120000
Decision Date: 08/03/01    Archive Date: 08/10/01

DOCKET NO.  01-04 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona

THE ISSUE

Entitlement to an effective date prior to March 9, 1994, for
a grant of service connection for post-traumatic stress
disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

W. H. Donnelly, Associate Counsel

INTRODUCTION

The veteran had active military service from January 1966 to
October 1969.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an February 2001 rating decision by
the Phoenix, Arizona, Regional Office (RO) of the Department
of Veteran's Affairs (VA).  A notice of disagreement was
received in March 2001, a statement of the case was issued in
March 2001, and a substantive appeal was received in April
2001.

FINDINGS OF FACT

1.  The veteran was discharged from active military service
in October 1969.

2.  PTSD was first diagnosed in 1992.

3.  A claim for service connection for PTSD was first
received from the veteran on March 9, 1994.

4.  By rating decision in August 1994, service connection for
PTSD was established, effective March 9, 1994.

CONCLUSION OF LAW

The criteria for entitlement to an effective date prior to
March 9, 1994, for a  grant of service connection for PTSD
have not been met.  38 U.S.C.A. �� 5110(a), 5107 (West 1991);
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000); 38 C.F.R. � 3.400(b)(2)(i) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000.  Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000).  This newly enacted legislation provides, among other
things, for notice and assistance to claimants under certain
circumstances.  Where laws or regulations change after a
claim has been filed or reopened and before the
administrative or judicial process has been concluded, the
version most favorable to the appellant will apply unless
Congress provided otherwise or has permitted the Secretary of
Veterans Affairs to do otherwise and the Secretary has done
so.  Karnas v. Derwinski, 1 Vet. App. 308 (1991).

After reviewing the claims file, the Board finds that there
has been substantial compliance with the assistance
provisions of the new legislation.  The record includes a
recent VA examination report, as well as VA outpatient
records.  Significantly, no additional pertinent evidence has
been identified by the veteran.  The Board therefore finds
that the record as it stands is adequate to allow for
equitable review of the veteran's appeal.

Further, the veteran and his representative have been
notified of the applicable laws and regulations which set
forth the criteria for entitlement to an earlier effective
date for service connection.  The discussions in the rating
decision and statement of the case have informed the veteran
and his representative of the information and evidence
necessary to warrant entitlement to the benefit sought.  The
Board, therefore, finds that the notice requirements of the
new law have been met.

Under the circumstances of this case where there has been
substantial compliance with the Veterans Claims Assistance
Act of 2000, a remand would serve no useful purpose.  See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit to flowing to the veteran are
to be avoided).  Moreover, given the completeness of the
present record which shows substantial compliance with the
notice/assistance provisions of the new legislation, the
Board finds no prejudice to the veteran by proceeding with
appellate review despite the fact that implementing
regulations have not yet been promulgated.

Although the veteran contends that the effective date for the
grant of service connection for PTSD should be the date he
was separated from service because he alleges PTSD symptoms
since then, applicable regulations are clear.  They first
require that a claim be filed with VA to establish
entitlement to VA benefits.  38 C.F.R. � 3.151(a).  In this
case, the veteran's claim was date-stamped as received on
March 9, 1994.  The veteran does not dispute that fact.

Moreover, a review of the claims file does not show that the
veteran at any prior time filed a communication, or took any
action which indicated an intent to seek benefits based on
PTSD, which can be viewed as an informal claim.  38 C.F.R.
� 3.155(a).  Correspondence from 1986 expresses
dissatisfaction with his employment situation, but cannot be
reasonably construed as an informal claim for service
connection for PTSD.  It appears that a diagnosis of PTSD was
not made until August 1992 as shown by a VA medical record.
However, because a claim for service connection for PTSD had
not been denied at any prior time, this August 1992 VA
medical report cannot be viewed as an informal claim to
reopen.  38 C.F.R. � 3.157(b).

The law is clear that the effective date for a grant of
service connection shall be the day following separation from
service or the date entitlement arose if the claim is
received within one year after separation; otherwise the date
of receipt of the claim or the date entitlement arose,
whichever is later, controls.  38 U.S.C.A. � 5110(b)(1);
38 C.F.R. � 3.400(b)(2).

In the present case, the veteran's claim was not received
within one year of his separation from service in October
1969.  Although his entitlement may be said to have arose in
August 1992 when he was first diagnosed with PTSD, his claim
was not received until March 9, 1994.  Accordingly, the later
date, March 9, 1994, is the proper effective date for the
grant of service connection for PTSD.  The RO has already
assigned this date as the effective date, and there is no
legal basis for assigning an earlier date.  The Board
acknowledges the veteran's contentions that he believes he
was suffering pertinent symptoms back to the time of his
discharge from service.  However, the law is quite clear that
a claim must be filed to request VA benefits, and the facts
in this case clearly show that there was no claim based on
PTSD prior to the one received on March 9, 1994.  The Board
is bound by applicable laws and regulations.

ORDER

The appeal is denied.

	ALAN S. PEEVY
	Member, Board of Veterans' Appeals