judge_norm: ROBERT E SULLIVAN

text:
Citation NR: 9601000
Decision Date: 01/22/96		Archive Date: 02/07/96
DOCKET NO.  91-14 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUE

Entitlement to service connection for cancer of the colon,
liver, prostate and bladder, claimed as residuals of exposure
to ionizing radiation.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

James L. March, Associate Counsel

INTRODUCTION

The veteran had active service from February 1943 to March
1946.  This appeal comes to the Board of Veterans� Appeals
(Board) from a July 1990 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Los Angeles,
California.  In September 1991, a hearing was held at the
Board.  In December 1991, the Board remanded the case for
additional development.

REMAND

The veteran contends that he was exposed to ionizing
radiation when he participated in Project TRINITY in July
1945, while a member of the 610th Army Air Force Base Unit.
As noted in the earlier Remand, the Defense Nuclear Agency
reported that there was no indication that anyone assigned to
the veteran�s unit was involved in Project TRINITY.  The
veteran�s representative, however, requested that VA obtain
the veteran�s military personnel records to confirm his
participation in Project TRINITY.

In January 1992, a request for the veteran�s military
personnel records was sent to the National Personnel Records
Center (NPRC).  NPRC responded that because the veteran�s
unit was so large, the veteran�s assigned squadron must be
identified in order to search for his records.  The RO asked
the veteran to identify his assigned squadron, but the
veteran could not recall to which squadron he was assigned in
July 1945.  Further, he stated that his personal records were
destroyed in the January 1994 Los Angeles earthquake.  The
Board believes that a more diligent search for the veteran�s
military records is necessary before the appeal can be
adequately adjudicated.

In light of the above, the Board concludes that further
development is necessary prior to final disposition of this
case.  Consequently, the case is REMANDED to the RO for the
following actions:

1.  The RO should use all available
resources to secure the veteran�s
military personnel records.
Specifically, the RO should contact the
service department in an attempt to
secure those records.

2.  The RO should contact the veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him since
his discharge from service for colon,
liver, prostate and bladder cancers,
especially any source which may have
linked the disorders to inservice
radiation exposure.  With any necessary
authorization from the appellant, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran which have not been
previously secured.

3.  Thereafter, the RO should undertake
any other necessary development, to
include a radiation dose estimate if
indicated, and readjudicate the issues on
appeal.

If the benefits sought on appeal are not granted to the
veteran�s satisfaction, he should be issued a Supplemental
Statement of the Case and be afforded a reasonable
opportunity to reply.  Thereafter, the case should be
returned to the Board for further appellate consideration, if
otherwise in order.

In taking this action, the Board implies no conclusion as to
any ultimate outcome warranted.  No action is required of the
veteran until he is otherwise notified by the RO.

	ROBERT E. SULLIVAN
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1994).

- 2 -


series: legacy

judge_norm: H N SCHWARTZ

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation NR: 9602000
Decision Date: 01/31/96		Archive Date: 02/15/96
DOCKET NO.  94-08 653	)	DATE
	)
	)

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

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim for service connection for residuals of
rheumatic fever.

2.  Whether new and material evidence has been submitted to
reopen a claim for service connection for a seizure disorder.

REPRESENTATION

Appellant represented by:	Elizabeth G. Marlowe, Attorney
At Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Brynn Krista Bloomgren, Associate Counsel

INTRODUCTION

The appellant had active service from January 1956 to
December 1957.

This matter previously came before the Board of Veterans'
Appeals (Board), which denied entitlement to service
connection for a seizure disorder and for residuals of
rheumatic fever in August 1983.  The case arose on appeal
from a January 1993 rating decision of the Atlanta, Georgia,
Regional Office (RO) of the Department of Veterans Affairs
(VA), which determined that new and material evidence had not
been submitted to reopen the claims for service connection.

REMAND

The veteran claims that he was treated in service for
rheumatic fever at Fort Jackson Hospital, South Carolina, and
for a seizure disorder at Fort Hancock, New Jersey, during
1956 and 1957.  The veteran�s service medical records, if
such existed, were reportedly lost in the fire that destroyed
a portion of the National Personnel Records Center (NPRC) in
St. Louis, Missouri, in July 1973.  When a veteran's records
have been destroyed, the VA has an obligation to search for
alternative medical records which support the veteran's case.
See Cuevas v. Principi, 3 Vet.App. 542 (1992); O'Hare v.
Derwinski, 1 Vet.App. 365 (1991).

Although the RO previously requested the NPRC to search for
service medical records and morning reports prior to its
previous denial, and made an additional request in October
1993, the Board finds that a further attempt should be made
to retrieve the claimed hospitalization reports.

In addition, in a letter from H. McCord Smith, M.D., to John
House, M.D., dated in 1983, Dr. Smith referred to his
possession of records of treatment for a seizure disorder by
Hector Gotay, M.D.  The veteran claims that these records
contain information to support his claim that seizures began
in 1956.  These reports are not available in the claims file.

Finally, legible copies of treatment records from the
Middlesex Memorial Hospital, in Portland, Connecticut, and
the Grace New Haven Hospital in New Haven Connecticut should
also be requested.

In light of the foregoing, the case is REMANDED to the RO for
the following development:

1.  The RO should complete a NA Form
13055, and provide the necessary
information concerning the claimed
hospitalizations for rheumatic fever and
seizure disorder in 1956 and 1957 at Fort
Jackson Hospital, South Carolina, and in
Fort Hancock, New Jersey.  The RO should
then again request NPRC for any service
records or morning reports of the veteran
to verify the claimed hospitalizations.
The RO should also attempt to directly
contact these hospitals to determine if
there are any available treatment records
for the veteran.  If no records exist, it
should be so noted in the claims file.

2.  The RO should contact Dr. Smith of
Athens Neurological Associates, 1077
Baxter Street, Athens, Georgia, 30606,
and request that he supply VA with copies
of any and all available records of
treatment by Dr. Gotay for the veteran,
and particularly those records referred
to in Dr. Smith�s May 1983 letter to Dr.
House.  The RO should also request Dr.
Smith to state the earliest date on which
he treated the veteran.

3.  The RO should attempt to retrieve any
available legible copies of any treatment
records from the Middlesex Memorial
Hospital, in Portland, Connecticut, and
the Grace New Haven Hospital in New
Haven, Connecticut, for the claimed
disorder.  A notation should be made if
no records are available.
4.  The RO should inform the veteran and
his representative that Board decisions
are final, and that previously denied
claims may not be reopened or allowed
unless new and material evidence is
presented or secured, the burden being on
the veteran to submit such evidence.  38
U.S.C.A. � � 5108, 7104(b) (West 1991);
38 C.F.R. � � 3.156, 20.1104, 20.1105
(1994).

5.  It may be likely that if the veteran
were treated for the claimed conditions
during service, records of private
prescriptions, in proximity to service,
may exist.  Such records may be retained
by pharmacies.  If the veteran can locate
such records, the records should be
submitted.

After the requested development has been completed to the
extent possible, the RO should again review the record.  If
the benefits sought on appeal are not granted, the RO should
furnish the veteran and his representative a supplemental
statement of the case, including a summary of the relevant
evidence, citation to the applicable laws and regulations,
and reasons and bases for the decision, and be afforded the
opportunity to respond before the record is returned to the
Board for further appellate review.

The purpose of this remand is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case.  No further action is required of the
veteran until he is notified.

	H. N. SCHWARTZ
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1994).

- 2 -


judge_norm: GARY L GICK

text:
Citation NR: 9603000
Decision Date: 02/08/96		Archive Date: 02/20/96
DOCKET NO.  91-50 075	)	DATE
	)
	)

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

THE ISSUE

Entitlement an increased evaluation for rheumatoid and
degenerative multiple joint arthritis, currently evaluated as
60 percent disabling.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Daniel G. Krasnegor, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1951 to August
1977.

This matter comes before the Board of Veterans� Appeals
(Board) on appeal of a March 1990 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in St. Petersburg, Florida.  The case was previously
before the Board and remanded for additional development of
the evidence in April 1992 and April 1993.

REMAND

Following the Board�s remand in April 1993, the veteran was
accorded an examination.  A review of the report of this
examination reflects that range of motion data for all joints
affected by arthritis were not set forth.  Additionally, the
record reflects that there has been a significant change in
the veteran�s condition since the most recent examination for
disability evaluation purposes.  In August 1993 the veteran
underwent surgery on his right foot and in February 1994 he
underwent surgery on his left foot to correct rheumatoid
arthritic deformities.

Furthermore, the United States Court of Veterans Appeals
(Court) recently held that when a diagnostic code provides
for compensation based upon limitation of motion, that the
provisions of 38 C.F.R. �� 4.40 and 4.45 (1995) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain �on use or due to flare-ups.�
DeLuca v. Brown, 8 Vet.App. 202 (1995).  In this regard, the
veteran has complained of pain, and stiffness and associated
limitation of function in his joints, and the Board finds
that reexamination is warranted.

In accordance with the statutory duty to assist the veteran
in the development of evidence pertinent to his claim, the
case is REMANDED for the following actions:

1.  The RO should request the veteran to
identify all physicians who have treated
him in the recent past for arthritis.
The RO should then obtain medical records
from all sources identified by the
veteran which are not already of record.

2.  The RO should schedule the veteran
for an examination by a specialist in
rheumatology in order to determine the
nature and severity of the veteran's
arthritis, to include functional loss due
to pain on use or during flare-ups.  The
claims folder should be provided to the
examiner for review in conjunction with
the examination.  The examiner should
record pertinent complaints, symptoms,
and clinical findings, including range of
motion data for each joint affected by
arthritis.  The examiner should comment
on the presence of arthritic deformity,
weakened movement, excess fatigability,
incoordination, muscle atrophy, swelling
and pain on movement.  The examiner
should express an opinion as to the
degree to which weakness, pain, or other
symptoms attributable to the arthritis
affects the veteran�s ordinary
activities, including his ability to
function on the job, as well as the
functional loss due to pain �on use or
due to flare-ups.�

3.  Following the above, the RO should
review the examination report and assure
that all requested information has been
provided.  When the RO has determined
that the examination report is adequate
for rating purposes, the case should be
readjudicated.  Consideration should be
accorded to whether 38 C.F.R. �� 4.40,
4.45 apply, and if so, whether they
provide a basis for any change in the
award of compensation benefits.  If the
benefit sought is not granted, the
veteran and his representative should be
furnished a supplemental statement of the
case, covering all issues on appeal.

When the above actions have been completed, the case should
be returned to the Board for further appellate consideration.
By this action the Board intimates no opinion, legal or
factual, as to the ultimate disposition warranted.

	GARY L. GICK
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1995).
- 2 -


judge_norm: C P RUSSELL

text:
Citation NR: 9604000
Decision Date: 02/22/96		Archive Date: 03/07/96

DOCKET NO.  94-04 889	)	DATE
	)
	)

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

THE ISSUE

Increased (compensable) rating for service-connected
residuals of a left eye injury.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. C. Graham, Associate Counsel

REMAND

The appellant served on active duty from November 1958 to
June 1962.

This appeal arose from a February 1993 rating decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida (VARO), which denied the appellant an
increased (compensable) rating for residuals of an injury to
the left eye.

The appellant has contended, in substance, that he has
multiple problems which are related to his service-connected
left eye injury.  He states that his eyesight has worsened,
he can no longer drive at night, his eyesight becomes blurred
on clear, bright days, he sees a silver glare in his left
eye, he lacks depth perception, he has headaches over his
left eye, and his vision seems darker.

The veteran underwent cataract surgery on the left eye in
December 1992.  A February 1993 VA outpatient clinical record
noted, "CME [cystoid macular edema] OS [left eye]
(microscopic burn?) -- account for [decreased] vision
probably."  A May 1994 VA outpatient clinical record also
noted a history of CME which resolved with decreased vision.

VA has a duty to assist the veteran in the development of all
facts pertinent to his claim.  38 U.S.C.A. � 5107(a) (West
1991); 38 C.F.R. � 3.103(a) (1994).  This includes the duty
to obtain VA examinations which provide an adequate basis
upon which to determine entitlement to the benefits sought on
appeal.  Littke v. Derwinski, 1 Vet.App. 90 (1991).

The most recent VA examination of the left eye was performed
in January 1992, at which time there was no evidence of
retinal scarring.  Therefore, it is the conclusion of the
undersigned that the VA examination provides an inadequate
basis upon which to ascertain entitlement to the benefits
sought.  The January 1992 examination contains no definitive
opinion as to whether the veteran's CME with residual
scarring is secondary to his service-connected corneal
scarring.  Another VA examination would assist the Board by
indicating whether the appellant�s claimed eye problems,
including the retinal scarring which decreased his vision,
are related to his service-connected corneal scarring.

Accordingly, the case is REMANDED for the following action:

The veteran should be afforded a special
VA ophthalmology examination to determine
the nature and extent of all residuals of
the in service injury to the left eye
with corneal scarring.  In particular,
the examiner should render an opinion as
to whether blurred vision, dark vision,
glare, headaches, lack of depth
perception, or decreased vision due to
retinal scarring are etiologically
related to any left eye injury in service
or the veteran's corneal scarring.  The
scope of the examination should be broad
enough to cover all residual conditions
which are suggested by the veteran's
complaints, symptoms or findings.  All
necessary tests should be performed,
including examination of the veteran's
current bilateral visual acuity.  The
physician should be provided the claims
folder for review prior to examination.

Thereafter, the originating agency shall determine whether
the appellant's claim may now be allowed.  If not, provide
the appellant and his representative with an appropriate
supplemental statement of the case, indicating that he has a
reasonable time to respond, and return the case to the Board
for further appellate consideration, if appropriate.

This REMAND is to develop evidence and afford due process.
The Board intimates no opinion as to the final outcome
warranted in this case.

	C. P. RUSSELL
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1994).

- 2 -


judge_norm: C W SYMANSKI

text:
Citation NR: 9605000
Decision Date: 02/29/96		Archive Date: 03/12/96
DOCKET NO.  91-44 681	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia

THE ISSUE

Entitlement to service connection for a psychiatric disorder,
to include post-traumatic stress disorder.

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

K. J. Alibrando, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1970 to
December 1973

This appeal arises from a July 1990 rating decision in which
the Department of Veterans Affairs (VA) Regional Office (RO)
denied service connection for post-traumatic stress disorder.
The Board of Veterans� Appeals (Board) remanded the case in
August 1992, October 1993 and in October 1994 for additional
development of the evidence.

REMAND

The veteran contends that he suffers from a psychiatric
disorder, to include PTSD, which was incurred in or
aggravated by service.

In October 1994, the Board remanded this case to the RO to
obtain additional treatment records, including the records of
Valley Hospital and all current VA outpatient records.  The
records obtained by the RO, pursuant to that remand, contain
reports of both preservice and postservice psychiatric
treatment that were not previously identified by the veteran.
An April 1981 Valley Hospital Psychiatric Social Work history
form shows that the veteran reported a long history of
depression.  He indicated that his first psychiatric treatment
was at the age of 14 at the Bergen Pine County Hospital which
lasted for approximately two years.  In addition, the veteran
reported that after discharge he received psychiatric
treatment from Dr. Papawitz of Oakland for a period of one and
one-half years.  The dates of that treatment was not
specified.  The records of this reported treatment have not
been obtained.  The VA has a duty to assist the veteran in the
development of facts pertinent to his claim.  38 U.S.C.A. �
5107(a) (West 1991); 38 C.F.R. � 3.103(a) (1994).  The U.S.
Court of Veterans Appeals (Court)has held that the duty to
assist the veteran in obtaining and developing available facts
and evidence to support his claim includes obtaining treatment
records to which the veteran has referred.
Littke v. Derwinski, 1 Vet.App. 90 (1990).  The RO should
ascertain from the veteran all preservice psychiatric
treatment and, thereafter, obtain all identified treatment
records.  The RO should also obtain the records of Dr.
Papawitz.

A November 1994 VA outpatient treatment record, received in
March 1995, shows that the veteran is in receipt of Social
Security benefits.  Copies of the Social Security
Administration decision and the medical records on which that
determination was based have not been obtained.  The Court in
Masors v. Derwinski, 2 Vet.App. 181 (1992) has held that the
duty to assist a veteran under 38 U.S.C.A. � 5107(a)(West
1991) includes an obligation to obtain the records of a Social
Security Administration adjudication awarding disability
benefits.

Under the circumstances of this case, the Board finds that
additional development is required.  Accordingly, the case is
REMANDED to the RO for the following:

1.  The RO should contact the veteran and
request him to furnish the names and
addresses of all health care providers
from whom he has received psychiatric
treatment prior to entry into active
service in January 1970.  The veteran
should also furnish the full name and
address of Dr. Papawitz, from whom he
received psychiatric treatment after
discharge from active duty.  The veteran
should be requested to identify the names
and addresses of all private health care
providers from whom he has received
current psychiatric treatment from
February 1995 to the present time.
Consent forms for the release to the VA
of any private medical records should be
obtained from the veteran.  Thereafter,
the RO should obtain legible copies of
all identified treatment records and
associate them with the claims folder.

2.  The RO should obtain copies of all VA
outpatient records concerning treatment
of the veteran�s psychiatric disability
from February 1995 to the present time.
All records obtained should be associated
with the claims folder.

3.  The RO should obtain copies from the
Social Security Administration of the
determination which awarded benefits to
the appellant and the medical records
used as a basis to award those benefits.

When the above developments have been completed, the case
should be reviewed by the RO.  If the decision remains
adverse to the appellant, he and his representative should
be afforded a supplemental statement of the case and
afforded a reasonable opportunity to respond.  Thereafter,
subject to current appellate procedures, the case should
be returned to the Board for further appellate
consideration.

C.W. SYMANSKI
	Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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)
(1995).
- 2 -


judge_norm: MICHAEL D LYON

disposition: denied

condition: back

condition: knee

text:
Citation NR: 9606000
Decision Date: 03/06/96		Archive Date: 03/16/96
DOCKET NO.  93-16 118	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to an increased rating for a mechanical low
back disorder, currently rated as 20 percent disabling.

2.  Entitlement to an increased rating for paresthesia of the
left leg, currently rated as 10 percent disabling.

3.  Entitlement to an increased (compensable) rating for
residuals of a left knee injury.

REPRESENTATION

Appellant represented by:	Alabama Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1987 to May
1989.

This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse rating action by
the Montgomery, Alabama, Regional Office (hereinafter RO).
As requested by the Board in its June 1995 Remand, the nature
of the veteran�s representation in this case has been
clarified, and the case is now ready for appellate review.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that entitlement to a 40 percent rating
for his mechanical low back disorder is warranted because
there is a �very significant� strain on his low back with
restriction of forward bending which limits his �everyday�
mobility.  He also contends that the back disability produces
extensive headaches and mild pain in the rear upper half of
his legs.  He contends that he is entitled to a 20 percent
rating for paresthesia of the left leg because this is
productive of extreme foot pain and numbness in the toes of
the left foot which limits his ability to climb stairs and
run.  With regard to residuals of a left knee injury, the
veteran contends that he is entitled to a 20 percent
disability rating because he has �extreme� pain in his knee
that precludes kneeling.  The veteran�s representative has
joined in these contentions.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran�s claims.

FINDINGS OF FACT

1.  All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.

2.  Neither severe limitation of lumbar motion nor severe
symptoms of lumbosacral strain are shown.

3.  No more than mild symptoms associated with incomplete
paralysis of the internal popliteal/tibial nerve in the left
leg is shown.

4.  No limitation of motion of the left leg is shown nor are
there any objective findings of subluxation or lateral
instability attributable to a left knee injury.

5.  There are no extraordinary factors resulting from the
service-connected disabilities at issue productive of an
unusual disability picture such as to render the application
of the regular schedular provisions impractical.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for a
mechanical low back disorder are not met.  38 U.S.C.A.
�� 1155, 5107 (West 1991); 38 C.F.R. �� 3.102, 3.321, 4.1,
4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5292, 5295 (1994).

2.  The criteria for a rating in excess of 10 percent for
paresthesia of the left leg are not met.  38 U.S.C.A.
�� 1155, 5107 (West 1991); 38 C.F.R. �� 3.102, 3.321, 4.1,
4.3, 4.7, 4.124a, DC 8524 (1994).

3.  The criteria for a compensable rating for residuals of a
left knee injury are not met.  38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 3.102, 3.321, 4.1, 4.3, 4.7, 4.31,
4.71a, DC 5257, 5260, 5261 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board finds that the veteran has presented sufficient
evidence to conclude that his claims are "well-grounded"
within the meaning of 38 U.S.C.A. � 5107(a).  The credibility
of the veteran�s evidentiary assertions are presumed for
making the initial well-grounded determination.  The Board is
also satisfied that the duty to assist mandated by
38 U.S.C.A. � 5107(a) has been fulfilled as there is no
indication that there are other records available that would
be pertinent to the veteran's appeal.

In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim or,
(2) whether the weight of the "positive" evidence in favor of
the claim is in relative balance with the weight of the
"negative" evidence against the claim.  The appellant
prevails in either event.  However, if the weight of the
evidence is against the appellant�s claim, the claim must be
denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).

Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.
Separate diagnostic codes identify the various disabilities.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant, and where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  38 C.F.R. �� 3.102,
4.3, 4.7.  In addition, the Board will consider the potential
application of the various other provisions of 38 C.F.R.,
Parts 3 and 4, whether or not they were raised by the veteran,
as well as the entire history of the veteran's disorder in
reaching its decision, as required by Schafrath v. Derwinski,
1 Vet.App. 589 (1991).

I. Entitlement to a Rating in Excess of 20 percent for a
Mechanical Low Back Disorder

Moderate limitation of motion of the lumbar spine warrants a
20 percent disability rating.  Severe limitation of lumbar
spine motion warrants a 40 percent disability rating.
38 C.F.R. � 4.71a, DC 5292.

Lumbosacral strain manifested by muscle spasms on extreme
forward bending with the loss of lateral spine motion
warrants a 20 percent disability rating.  A 40 percent rating
for lumbosacral strain requires severe symptoms, such as
listing of the whole spine to the opposite side, a positive
Goldthwait�s sign, marked limitation of forward bending in
the standing position, the loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
spaces, or some of the above with abnormal mobility on forced
motion.  38 C.F.R. � 4.71a, DC 5295.

The following is a summary of the relevant clinical and
adjudicative history.  An April 1988 service medical record
showed the veteran complaining about back pain that radiated
to his legs since an August (1987) spinal injection.  In
October 1988, the veteran reported to sick call after he
complained that he hurt his back the previous evening.  The
assessment at that time was post spinal anesthesia back pain.
The reports from a Medical Evaluation Board Proceeding
conducted in March 1989 listed mechanical low back pain
without evidence of radiculopathy as one of the veteran�s
disabilities.  The physical examination conducted in
conjunction with this proceeding in February 1989 indicated
that the veteran had a normal range of back motion but had
tenderness in the mid-line of the back.

After service, the veteran was afforded a VA examination in
September 1989.  An X-ray of the lumbar spine was negative,
and the physical examination of the back showed no evidence
of paravertebral muscle spasms and tenderness to palpation
over the midline in the low lumbar region.  The range of
lumbar motion was 90 degrees of flexion and 30 degrees of
extension.  The assessment was low back pain of uncertain
etiology.

VA examinations afforded the veteran in July 1990 included
the following findings.  Slight paravertebral tenderness on
the right side with tenderness to palpation over that area
was noted.  Forward flexion of the lumbar spine was recorded
at 90 degrees and extension backwards was recorded at 20
degrees.  There was 25 degrees of right and left lateral
bending.  A neurologic examination showed no evidence of
radiculopathy involving the back and lumbar spine X-rays were
essentially normal.  The impression was �[c]hronic low back
pain which has been present since undergoing a spinal
anesthetic agent.�

Service connection for a mechanical low back disorder was
granted by a November 1990 rating decision, and a 10 percent
disability rating was assigned.

A November 1991 VA examination showed the following relevant
information.  The veteran reported that exercises and muscle
relaxers for his back had not helped and that he could only
walk a short distance.  He stated that his back pain kept him
up at night, and that back pain was exacerbated by weather
changes.  X-rays of the lumbar spine were again negative.
The veteran was noted to stand without significant asymmetry
with splinting and a flattened lordosis in the left lower
region.  Forward flexion was recorded to 60 degrees;
extension backwards to 10; lateral bending to 40 degrees
without definite segmentation and rotation to 30 degrees.
There was lumbosacral tenderness without radiation and with
no sciatic tenderness.  The impression was symptoms of
chronic low back strain without evidence of nerve root
involvement.

By rating decision of May 1992, a 20 percent rating was
assigned for the back pathology.

Turning to an analysis of the veteran�s claim, the most
relevant evidence to consider are the clinical findings
contained in the report from the most recent VA examination
conducted in November 1991.  Francisco v. Brown, 7 Vet.App.
55 (1994).  While some ranges of lumbar motion reported in
November 1991 showed a deterioration in motion when compared
with the July 1990 examination findings, these readings do
not represent �severe� limitation of lumbar motion so as to
warrant a 40 percent rating under DC 5292.  It is generally
known, for instance, that forward bending of a normal low
back allows one to almost touch one�s toes, or about 90
degrees.  The findings of the November 1991 examination show
no more than moderate limitation of motion in the view of the
Board.  It is also significant that the evidence does not
reveal findings of spasm in the paravertebral muscles.
Similarly, the Board does not conclude that the criteria for
a 40 percent rating under DC 5295 are met, because severe
symptoms of lumbosacral strain were not shown at the time of
the November 1991 VA examination.  As support for this
determination, attention is directed to the fact that the
examiner concluded that there was no evidence of nerve root
involvement or sciatic tenderness, and the lumbar X-rays have
all been negative, without any radiographic evidence of
arthritic changes, narrowing or joint space irregularities.
Moreover, the November 1991 VA examination did not show
listing of the whole spine to the opposite side or marked
limitation of forward bending.

38 C.F.R. � 3.321(b)(1) provides that where the disability
picture is so exceptional or unusual that the normal
provisions of the rating schedule would not adequately
compensate the veteran for his service-connected
disabilities, an extraschedular evaluation will be assigned.
However, neither frequent hospitalization nor marked
interference with employment due to the veteran's mechanical
low back disorder is demonstrated.  Therefore, an
extraschedular evaluation under the provisions of 38 C.F.R.
� 3.321(b)(1) is not warranted.

When the �positive� evidence contained in the contentions of
the veteran as to what he feels is a more severe level of
back disability is weighed against the objective �negative�
clinical evidence of record, the Board concludes that the
�negative� evidence of record weighing against an increased
rating for a mechanical low back disorder is greater than the
�positive� evidence weighing in favor of an increased rating.
Accordingly, the veteran�s claim must be denied.  Gilbert, 1
Vet. App. at 49.

II.  Entitlement to a Rating in Excess of 10 Percent for
Paresthesia of the Left Leg

Mild symptoms associated with incomplete paralysis of the
left internal popliteal/tibial nerve warrant a 10 percent
rating.  A 20 percent rating for incomplete paralysis of the
left internal popliteal/tibial nerve requires moderate
symptoms.  38 C.F.R. � 4.124a, DC 8524.  The internal
popliteal/tibial nerve affects flexion and adduction of the
foot and the ability to separate the toes.  As such, it is
the most appropriate DC for evaluating the left leg
paresthesia.

The relevant clinical and adjudicative history is summarized
as follows.  Shortly after induction in May 1987, the veteran
was treated for a bruised left tibia.  At that time, the
veteran reported that all of his toes were numb.  Records
from service reflect continuing treatment for left tibial
pain, to include physical therapy, and the veteran was place
on a limited duty profile due to his left knee.  In February
1989, an electromyographic study was negative except for
evidence suggestive of reinnervation in the extensor
digitiform brevis and in the soleus muscles.  These findings
were said to be consistent with very early and mild S1
radiculopathy in the left leg.  The February 1989 summary
from the medical examination conducted in conjunction with
the March 1989 Medical Evaluation Board Proceedings reported
a history of an August 1988 fasciotomy of the leg that failed
to relieve his symptoms.  The diagnoses at that time included
�bilateral leg pain of undetermined etiology, doubt chronic
compartment syndrome.�

After service, the veteran was afforded a VA examination in
September 1989.  The range of motion of both knees was
between 0 and 145 degrees.  There was tenderness to palpation
over the left patella, and there appeared to be a very small
palpable loose body of the prepatellar bursa.  No instability
was present.  An X-ray of the left tibia and fibula revealed
a small density over the soft tissues of the mid-shaft of the
lower leg.  The impression included �[h]istory of trauma of
the left lower leg with ceullulitis-postop surgery secondary
to compartment syndrome.�

Reports from VA orthopedic and neurologic examinations
conducted in July 1990 showed 0 to 140 degrees of left knee
motion.  Upon orthopedic examination, the physician was not
able to palpate the small prepatellar loose body which had
previously been present, but there was tenderness to
palpation directly over the anterior surface of the patella.
No redness, heat, or swelling were present and no instability
of the left knee was noted.  The veteran performed a good
heel and toe walk and could perform a full squat and arise
again.  Quadriceps and extensor hallucis longus strength was
�5/5� bilaterally.  No atrophy in the quadriceps or calves
was shown, and reflexes and sensation were intact.  An X-ray
of the left knee showed a well preserved joint space and no
significant degenerative changes.  The relevant impression
included chronic left lower leg pain worsened by prolonged
standing or walking and left knee pain present only upon
kneeling.

Reports from a VA neurologic examination conducted in July
1990 showed the palpable defect of tissue in the mid area of
the veteran�s left anterior calf.  There was no tenderness to
palpation anywhere.  The examination of the sensory functions
of his lower extremities was normal in all regards on both
sides to pain, temperature and vibration.  Deep tendon
reflexes were �3+� in both knees and �2+� in the ankles, and
there were no pathologic reflexes or clonus.  The veteran was
able to stand on his toes and heels.  The impression was a
normal neurologic examination.  The neurologist opined that
the numbness the veteran described in his toes may have been
due to mild positional or vascular compression, but that
there was no evidence of neurologic deficits.

A November 1990 rating decision granted service connection
for paresthesia of the left leg and assigned a 10 percent
disability rating.

Reports from a November 1991 VA examination reflect
complaints by the veteran of burning in his left leg after
1/2 mile of walking.  The veteran described particular pain
in his left leg with ankle motion.  Upon physical
examination, the veteran was observed to walk without a limp.
The veteran was able to �get onto� his toes and heels, but
squatting with his heels kept on the floor limited left knee
flexion at 100 degrees.  Knee jerks were �4+,� the right
ankle jerk was �3+,� and the left ankle jerk was �2+� without
clonus.  Ankle motion was slightly restricted, more so on the
left.  With knees extended the right ankle came to the 0
position and the left ankle to 5 degrees of plantar flexion.
With the knees flexed the right ankle dorsiflexed 10 degrees
and the left ankle dorsiflexed 5 degrees.  Plantar flexion
was 40 degrees on the right and 35 degrees on the left.  Both
ankles inverted to 35 degrees and everted to 30 degrees.
There were no significant temperature differences upon
palpation of the lower extremities, and there were pulses
with no sensory pattern.  The left upper calf was 1/4 inch
smaller than the right upper calf, but the lower portion of
the left leg below the fasciatome was 1/4 inch larger than
the right side.  There was a full range of motion of the left
knee and the examiner could not demonstrate any left knee
pathology as the knee was stable with no effusion.  The
impression included mild residuals and impairment of ankle
motion.

Turning to an evaluation of the 10 percent disability rating
currently assigned, the Board again notes that the most
probative evidence to consider is the clinical evidence
contained in the reports from the most recent VA examination
conducted in November 1991.  As noted above, the examiner
described the impairment and limitation of motion of the
ankle to be �mild.�  Mild disability under DC 8524 warrants a
10 percent disability rating, and the Board concludes that
the pain and limitation of functioning attributable to
paresthesia of the left leg is adequately reflected by this
10 percent rating currently assigned.  Support for this
determination is represented by the fact that the left ankle
jerk was recorded at �2+ without clonus, and ankle motion was
described as being only slightly restricted.  There were no
significant temperature differences upon palpation of the
lower extremities,. and there were pulses with no sensory
pattern.  Attention is also directed to the July 1990
neurologic examination, which the examiner indicated was
�normal� with no evidence of neurologic deficits.

It is also noted that moderate limitation of ankle motion
would warrant a 10 percent rating.  A 20 percent rating would
be warranted for marked limitation of motion.  38 C.F.R.
� 4.71a DC 5271.  As discussed above, only very slight
limitation of left ankle motion is shown.  As such, there is
no basis for a higher rating under the provisions dealing
with limitation of motion.

There is no evidence to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. � 3.321(b)(1), and
the Board finds the subjective �positive� evidence of record
to be overcome by the weight of the �negative� objective
evidence amassed at the VA examinations cited above.
Accordingly, the veteran�s claim for an increased rating for
residuals of paresthesia in the left leg must be denied.
Gilbert, 1 Vet. App. at 49.

III.  Entitlement to a Compensable Rating for Residuals of a
Left Knee Injury

A 10 percent rating for �other� impairment of the knee
requires slight functional impairment associated with
recurrent subluxation or lateral instability of the knee.
38 C.F.R. � 4.71a, DC 5257.

In every instance where the Ratings Schedule does not provide
a zero percent evaluation for a diagnostic code, a zero
percent evaluation shall be assigned when the requirements
for a compensable evaluation are not met.  38 C.F.R. � 4.31.

A 10 percent rating for limitation of flexion of the leg
requires flexion to be limited to 45 degrees.
38 C.F.R. � 4.71a, DC 5260.  A 10 percent rating for
limitation of extension of the leg requires extension to be
limited to 10 degrees.  38 C.F.R. � 4.71a, DC 5261.  Normal
knee motion is 0-140 degrees.  38 C.F.R. � 4.71, Plate II.

The relevant clinical history, in pertinent part, was
recorded in Section II of this decision.  As for the
adjudicative history, a November 1990 rating decision
assigned a separate noncompensable rating for a �left knee
injury,� rating by analogy to DC 5257.  This rating
apparently was assigned to reflect the in-service injury in
which the veteran bruised his tibia.

Examining the most recent objective clinical evidence
contained in the reports form the November 1991 VA
examination, the Board notes that a full range of left knee
motion was shown.  Thus, compensable evaluations under DC
5260 or 5261 are precluded.  A compensable evaluation under
DC 5257 is also precluded, as the examiner in November 1991
found the left knee to be stable with no effusion or any
discernible pathology.  When weighed against the
uncorroborated �positive� evidence contained in the veteran�s
subjective statements contending that there is a more
significant disability in the left knee due to pain, the
objective clinical evidence cited above, which is entirely
�negative,� is of greater probative value in the opinion of
the Board.  Accordingly, the claim for a compensable rating
for
residuals of a left knee injury must be denied.  Gilbert, 1
Vet. App. at 49.  In making this determination, the Board
finds no clinical evidence which would support an
extraschedular evaluation under 38 C.F.R. � 3.321(b)(1).

Consideration has also been given to the appellant�s
contention that the pain is so severe that he is unable to
kneel.  While some pain on kneeling has been noted on the
examination reports, it is not objectively shown to be so
severe as to prevent kneeling or otherwise cause functional
impairment.  Thus, there is, in the view of the Board no
basis for assignment of a compensable rating under 38 C.F.R.
�� 4.40, 4.59.

ORDER

Entitlement to a rating in excess of 20 percent for a
mechanical low back disorder is denied.

Entitlement to a rating in excess of 10 percent for
paresthesia of the left leg is denied.

Entitlement to a compensable rating for residuals of a left
knee injury is denied.

	MICHAEL D. LYON
	Member, Board of Veterans' Appeals

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


disposition: dismissed

condition: skin

text:
Citation NR: 9607000
Decision Date: 03/15/96		Archive Date: 03/26/96
DOCKET NO.  94-21 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUE

Entitlement to service connection for allergies as manifested
by a skin disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Phillip L. Krejci, Associate Counsel

INTRODUCTION

The veteran had active service from February 1943 to October
1943.  This appeal arises from an April 1994 rating decision
of the Columbia, South Carolina, Regional Office (RO) which
denied service connection for allergies.

The veteran testified at an October 1995 personal hearing at
the RO which was conducted by C.W. Symanski who is the member
of the Board responsible for making the final determination
in this case and who was designated by the Chairman to
conduct the hearing pursuant to 38 U.S.C.A. � 7102(b).

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the RO erred by failing to grant
service connection for allergies.  He maintains that a skin
disorder that erupted in service was a symptom of an allergy
to wool, that a skin disorder persists, and that his allergic
condition caused spasms which resulted in his discharge from
service.  It is further requested that the claim be remanded
to afford the veteran a VA dermatology examination.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for entitlement to
service connection for allergies as manifested by a skin
disorder is not well grounded and must be dismissed.

FINDINGS OF FACT

1.  The veteran�s claim that allergies were manifest during
service, which in turn caused a skin disorder both during
service and currently, is not accompanied by any medical
evidence to support this allegation.

2.  The claim for entitlement to service connection for
allergies as manifested by a skin disorder is not plausible.

CONCLUSION OF LAW

The appellant�s claim for entitlement to service connection
for allergies as manifested by a skin disorder is not well
grounded.  38 U.S.C.A. � 5107(a) (West 1991 & Supp. 1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service medical records include the February 1943 induction
physical examination which noted a fungal infection of the
toes.  On examination in September 1943, the veteran had
trichophytosis on the inner surface of the thighs.  A
September 1943 skin consultation report includes the opinion
that the veteran had tinea cruris and corporis.  An October
1943 certificate of disability for discharge determined that
the veteran was unfit for service due to epilepsy, grand mal
type.

In a June 1992 VA general medical examination, skin
examination revealed multiple actinic keratoses over the
face, forearms, and hands.  On VA neurology examination in
June 1992, it was reported that the veteran had no history of
allergies.

The RO sent a development letter to the veteran in March 1994
requesting assistance in obtaining all post service medical
evidence.  A response was received from the veteran in April
1994 indicating that his treating physician was deceased and
that he had no further information.

At an October 1995 hearing, the veteran testified that he
developed a skin rash about six months after entering active
duty.  He was given ointment as treatment but the treatment
was not effective.  At the time of discharge from service, he
had a skin rash that extended from his lower abdomen to his
knees; occasionally, it erupted under his arms.  He had not
been treated by the VA for the inservice skin rash.  He had
been seen by two private doctors for skin disability around
1949 or 1950, but he did not know the name of one doctor and
he thought both had been dead for some time.  Some time after
separation from service, a doctor told him he was allergic to
wool and he believed it was that allergy which caused the
skin rash in the service.  He could not recall the last time
he had seen a doctor in connection with a skin disorder.  At
the time of the hearing, he had no symptoms similar to the
skin rash he had in service; however, he did have a skin
disorder on his arms that was different from the skin rash he
had in service.  The one on his arms got worse when exposed
to the sun.

Under applicable criteria, service connection will be granted
for disability resulting from injury or disease incurred in
or aggravated by service.  38 U.S.C.A. �� 1110.  A claimant
seeking benefits under a law administered by the Secretary of
the Department of Veterans Affairs shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
The Secretary has the duty to assist a claimant in developing
facts pertaining to the claim if the claim is determined to
be well grounded.  38 U.S.C.A. � 5107(a).  Thus, the
threshold question to be answered is whether the veteran has
presented a well-grounded claim, that is, a claim which is
plausible.  If the claim is not well grounded, the appeal
must fail, and there is no duty to assist further in the
development of the claim as any such additional development
would be futile.  Murphy v. Derwinski, 1 Vet.App. 78 (1990).
As explained below, the Board finds that the veteran�s claim
is not well grounded.  In that regard, although the
representative requested at the October 1995 hearing that the
case be remanded to the RO for a VA dermatology examination,
that request is without foundation as the duty to assist has
not been triggered in this case.

To present a well grounded claim, the claimant must provide
evidence demonstrating that the claim is plausible; mere
allegation is insufficient.  Tirpak v. Derwinski, 2 Vet.App.
609 (1992).  The determination of whether a claim is well
grounded is legal in nature.  King v. Brown, 5 Vet.App. 19
(1993).  A well-grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden of 38 U.S.C.A. � 5107(a).  Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990).  To be well grounded,
a claim must be accompanied by supportive evidence, and such
evidence must justify a belief by a fair and impartial
individual that the claim is plausible.  Where the
determinative issue involves either medical etiology or a
medical diagnosis, competent medical evidence is required to
fulfill the well-grounded claim requirement of 38 U.S.C.A.
� 5107(a).  Lathan v. Brown, 7 Vet.App. 359 (1995).

In order for a claim for service connection to be well
grounded, there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet.App. 498 (1995).

The veteran had a skin rash in service which was diagnosed as
tinea cruris and corporis.  He currently has a skin disorder
which has been diagnosed as actinic keratosis.  The veteran
acknowledged at his personal hearing that the two skin
disorders are different.  The veteran has not presented
medical evidence to establish a nexus between the two skin
disorders or to establish that he has ever had allergies.
Moreover, the veteran has presented no medical evidence
linking either of the two skin disorders to an allergy.  The
only evidence which would support the veteran�s claim are his
written statements and testimony; however, lay evidence is
inadequate to establish a medical claim.  As a result, he has
failed to meet the initial burden imposed by 38 U.S.C.A.
� 5107(a), his claim lacks plausibility, and it is not well
grounded.  When claims are not well grounded, the Board lacks
jurisdiction to adjudicate the issues.  Boeck v. Brown, 6
Vet.App. 14 (1993).

ORDER

The claim for entitlement to service connection for allergies
as manifested by a skin disorder is dismissed.

	C.W. SYMANSKI
	Member, Board of Veterans' Appeals

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: S L KENNEDY

text: The appeal is denied.

text:
Citation NR: 9608000
Decision Date: 03/26/96		Archive Date: 04/10/96
DOCKET NO.  94-06 523	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased evaluation of residuals of
vagotomy and Billroth II reconstruction for chronic duodenal
ulcer, currently evaluated as 40 percent disabling.

REPRESENTATION

Appellant represented by:	Massachusetts Department of
Veterans Service

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Johnson, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1958 to April
1962.

This matter initially came to the Board of Veterans� Appeals
(Board) from a September 1993 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Manchester, New
Hampshire, which denied an increased evaluation for
postoperative residuals, vagotomy, and Billroth II
reconstruction for chronic duodenal ulcer.

In a September 1995 rating decision, the RO denied the
veteran�s claim of entitlement to service connection for a
liver disorder as secondary to the veteran�s service-
connected postoperative residuals of vagotomy and Billroth II
reconstruction for chronic duodenal ulcer.  The veteran was
provided notice of this determination and of his appellate
and procedural rights in a VA letter dated in September 1995.
The record on appeal currently does not contain a timely
filed notice of disagreement as to that determination.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his service connected disability is
more disabling than recognized by the evaluation currently in
effect.  He maintains that he has abdominal pain preceding a
bowel movement, occasional vomiting with blood, blood in the
stools and urine, and nosebleeds.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against entitlement to an increased evaluation
for the veteran�s service-connected residuals of vagotomy and
Billroth II reconstruction for chronic duodenal ulcer,
currently evaluated as 40 percent disabling.

FINDINGS OF FACT

1.  All relevant evidence necessary for a disposition of the
appeal has been obtained by the RO.

2.  The appellant's service-connected duodenal ulcer disease,
status post subtotal gastrectomy and vagotomy are manifested
by subjective complaints of abdominal pain preceding a bowel
movement, occasional vomiting with blood, blood in the
stools, with no current evidence of active ulceration, or
weight loss productive of definite impairment of health, and
no medical evidence of severe postgastrectomy syndrome.

CONCLUSION OF LAW

The criteria for an increased evaluation in excess of 40
percent for residuals of vagotomy and Billroth II
reconstruction for duodenal ulcer have not been met.
38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. � 3.321,
Part 4, � 4.114, Diagnostic Codes 7305, 7308, 7348 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

1.  Factual Background

Service medical records indicate that in January 1961, the
veteran was hospitalized and diagnosed with gastroenteritis.
After service, the veteran sought medical treatment from
private physicians.

From September 1962 to October 1962, the veteran was
hospitalized upon complaints of severe abdominal pain.  He
was diagnosed with a perforated duodenal ulcer and a
plication was performed; his condition upon discharge
reportedly had improved.  A May 1963 letter from the
veteran�s private physician noted the veteran�s complaints of
occasional periods of pyrosis, regurgitation of food and sour
eructations.  He reported that his findings were consistent
with chronic gastritis and duodenitis.  At that time, the
reported height of the veteran was 5� 7 1/2� and reported
weight of 125 pounds.

In June 1963, the veteran underwent a VA examination for
rating purposes and the veteran reported complaints regarding
the residuals of his ulcer operation and indicated that he
had dietary restrictions.  He was diagnosed with a chronic
duodenal ulcer.  At that time, the veteran�s weight was 119
pounds with a reported maximum weight of 138 pounds.  In June
1967, the veteran underwent another VA examination for rating
purposes.  He reported complaints of stomach pain, occasional
nausea, vomiting, constant weight loss and that he was on a
semi-bland diet.  The veteran was diagnosed as having an
active duodenal ulcer and gastritis.  In a July 1963 rating
decision, the veteran service connection was established for
chronic duodenal ulcer and a 20 percent disability evaluation
was assigned.

Between October 1978 to December 1978, the veteran was
hospitalized and underwent a truncal vagotomy, antrectomy
with Billroth II reconstruction, and catheter duodenostomy at
a VA hospital.  In a February 1979 rating decision, the
veteran received a 40 percent evaluation for his service-
connected postoperative residuals, vagotomy and Billroth II
reconstruction for chronic duodenal ulcer.

The evidence of record also contains more recent VA treatment
records from December 1991 to April 1993, and February 1995
to June 1995, regarding treatment of the disability at issue
in this case.  VA medical records dated in December 1991 show
that the veteran complained of having abdominal pain for
several weeks, vomiting, swollen feet, and dark urine.  He
denied hematemesis or melena.  The findings were to rule out
recurrent peptic ulcer disease.  The veteran was also treated
for liver disease which was indicated to be secondary to
alcohol abuse.  VA treatment records dated in 1992 reflect
treatment for liver disease with mild anemia; however, in
February 1992, it was noted that the anemia was nearly
resolved and that the veteran had alcoholic cirrhosis.

Between March 1993 and April 1993, the veteran was
hospitalized with complaints of epigastric pain, nausea and
vomiting several times with blood.  The report indicated that
the veteran denied bright red blood per rectum, but reported
that he had intermittent black stools in the past.  The
report indicated that the emergency room noted blood in his
vomit and that he was cytopenic with elevated liver functions
and an ileus on kidney-ureter-bladder examination.  The
abdominal examination showed that the bowel sounds were high-
pitched and intermittent.  The rectal examination showed that
the veteran was guaiac negative, although there was no stool
in the vault.  The veteran underwent an
esophagogastroduodenoscopy which revealed acute gastritis,
but no ulcer disease and no esophagitis.  The examination
also revealed a hiatal hernia and the gastric mosaic pattern
was reflective of portal hypertension.  There was no evidence
of acute bleeding.

At that time, the diagnoses were: upper gastrointestinal
bleed, secondary to gastritis; pancytopenia, probably
secondary to alcoholism; coagulopathy, thought to be due to
cirrhosis; status-post transfusion of 4 units of fresh,
frozen plasma and units of platelets; hepatitis C antibody
noted positive after discharge; status-post lumbar puncture;
normal CT scan of head; encephalopathy, thought to be
secondary to medications and liver failure; status-post right
lower lobe pneumonia and bilateral pleural effusions
(persistent); hypernatremia (resolved); malnutrition; status
post esophagogastroduodenoscopy; and status-post
echocardiogram.

In a subsequent April 1993 VA outpatient treatment note, the
veteran reportedly denied having bright red blood in his
rectum and denied melena.  It was noted that the veteran did
not have abdominal pain.  However, in his October 1993 Notice
of Disagreement, the veteran contended that he reported to
physicians his difficulty in determining whether or not he
had rectal bleeding.  He contended his stools were black due
to the medication and iron he was taking, and that absent the
medication and iron, he saw bright red blood in his stools.
He also reported having sharp abdominal pain when attempting
to delay a bowel movement or after he ate.  He also claimed
that he had rectal bleeding, vomiting and swollen legs and
that he never received medication for his ulcers.

In March 1994, the veteran testified at a personal hearing.
He testified that he had not worked as an electrician for the
past four years because of problems with his legs, arms and
stomach, although the Board notes that in a March 1993
progress note the veteran reported that he was working
intermittently as an electrician.  He also testified that he
spent time painting and preparing his home for an auction
sale.

He testified that he had not been hospitalized since April
1993.  He reported that his appointments with his physician
and his medications were canceled for reasons unknown to him
and that he did not know the results of the last scan
performed.
He testified to having sharp abdominal pain preceding bowel
movements which were difficult to delay, and that his bowel
movements were loose.  He testified to changing his
undergarments approximately three to four times a day because
of bleeding.  He also gave testimony regarding modification
of his diet and weight loss.  During the hearing, he stated
that the last time he was weighed, with clothes, his weight
was approximately 104 or 105 pounds. He testified that he
experienced dizziness and weakness.  He experienced problems
eating breakfast and also stated that the sharp pains were
related to how much he ate.  The veteran reported that he was
taking Zantac.  He also opined that his anemia was related to
his nosebleeds and blood in his stools.

With respect to the veteran�s weight, however, the Board
notes that in a February 1995 entry, the veteran�s weight was
reported as 127 pounds.  That same entry also included the
veteran�s report of persistent rectal bleeding, nosebleeds,
bleeding gums and dark yellow urine.  The examiner reported
that the veteran had advanced alcoholic liver disease with
mild hypersplenism.  In a March 1995 VA outpatient treatment
report, it was noted that the veteran was seen in February
with complaints about digestion.  The report noted that the
veteran�s last colonoscopy was in July 1993 when one polyp
was found, and that the veteran still complained of bleeding.
The veteran�s reported weight was 128 pounds and his height
was noted to be 5� 8�.  In a May 1995 VA note, it was
reported that an upper gastrointestinal study and barium
enema were normal.

In November 1995, the veteran underwent a VA examination for
rating purposes.  The examiner noted that the veteran�s
weight was 125 pounds and that he claimed no weight loss for
that year.  The examiner reported that the veteran did not
appear anemic.  The veteran reported a negative history of
anemia, hematemesis and vomiting.  He also denied having
abdominal pain.  He did report having weekly black stools and
noticed occasional blood in his stools.  The examination
revealed that the veteran had multiple abdominal scars which
were well-healed and nontender.  The bowel sounds appeared
normal and the rectal examination showed some external
hemorrhoids.  It was also noted that the hemoculture was
negative.  At that time, the diagnoses were status post
gastrointestinal bleed with vagotomy, status post
gastrointestinal bleed with Billroth II and antrectomy,
external hemorrhoids, hepatomegaly, hepatocellular
dysfunction, ethanol abuse and hematuria, of questionable
etiology.

An April 1995 VA radiology report appended to the VA
examination indicated that upper gastrointestinal and kidney-
ureter-bladder x-rays were performed.  The kidney-ureter-
bladder x-ray demonstrated barium throughout the large bowel
representing a residuum from a previous barium examination.
The upper gastrointestinal tests showed normal peristalsis
throughout the esophagus, that the stomach demonstrated
status post Billroth II procedure, that there was no hold up
at the gastrojejunostomy, that there was no evidence of
ulceration and that the proximal small bowel outlined
normally.  The impression given was that the kidney-ureter-
bladder x-ray was negative for obstruction or perforation and
that the upper gastrointestinal x-ray showed satisfactory
status post Billroth II gastrectomy.

In December 1995, the veteran submitted a statement in
response to the November 1995 Supplemental Statement of the
Case which discussed the November 1995 VA examination.  He
denied reporting a negative history of anemia and he asserted
that the examining physician did not weigh him.  The veteran
reported that the urine test for the VA examination showed
presence of heavy blood.  He also stated that three days
later, he entered an emergency room with complaints of severe
abdominal pain and the urine test also revealed a heavy blood
content.  He noted that x-rays were taken and reported that a
physician told him that he had passed a gallstone from the
kidney to the bladder.  The veteran also maintained that he
continued to have blood in his urine.  He also maintained
that he told the VA examiner that he felt like vomiting when
he ate, although he did not, and that three days after the
examination, he vomited four to five times.

2.  Analysis

Disability evaluations are based upon the average impairment
of earning capacity resulting from a disability.  38 U.S.C.A.
� 1155 (West 1991).  The veteran�s service-connected
disability is currently assigned a 40 percent evaluation
under the provisions of 38 C.F.R.  Part 4, Diagnostic Code
7348 (1995).  Diagnostic Code 7348 contemplates vagotomy with
pyloroplasty or gastroenterostomy.  Under this code, the
maximum of 40 percent is applied when a vagotomy with
pyloroplasty or gastroenterostomy is followed by demonstrably
confirmative postoperative complications of stricture or
continuing gastric retention.  38 C.F.R. � 4.114, Diagnostic
Code 7348 (1995).  As such, in order to determine whether the
veteran is entitled to an increased schedular evaluation, the
Board has considered whether the veteran�s current
symptomatology meets the relevant criteria under other
pertinent diagnostic codes.

Diagnostic Code 7308 contemplates postgastrectomy syndromes.
The schedular evaluation for a 60 percent rating is applied
when the disability is severe, associated with nausea,
sweating, circulatory disturbance after meals, diarrhea,
hypoglycemic symptoms, and weight loss with malnutrition and
anemia.  Diagnostic Code 7305 contemplates a duodenal ulcer.
The schedular criteria for a duodenal ulcer contemplates a
rating of 40 percent for a moderately severe duodenal ulcer
with less than severe impairment of health manifested by
anemia and weight loss, or recurrent incapacitating episodes
averaging 10 days or more in duration at least four or more
times a year; a rating of 60 percent is in order where there
is severe duodenal ulcer with pain only partially relieved by
standard ulcer therapy, periodic vomiting, recurrent
hematemesis or melena, with manifestations of anemia and
weight loss productive of a definite impairment of health.
38 C.F.R. � 4.114, Diagnostic Codes 7305, 7308 (1995).

Pursuant to 38 C.F.R. � 4.114 (1995), ratings under the
diagnostic codes discussed cannot be combined, and a single
evaluation will be assigned under the diagnostic code which
reflects the predominant disability picture, with elevation
to the next higher evaluation where the severity of the
overall disability warrants such elevation.

After reviewing all the evidence of record, the Board finds
that an increased disability rating is not warranted.  The
evidence, as discussed above, does not show that the veteran
has met the criteria to warrant an increase of greater than
that currently assigned.  Although the veteran reports
periodic vomiting, weight loss and anemia, the medical
evidence does not demonstrate that the veteran has met the
other criteria required for a 60 percent rating such as the
severe duodenal ulcer with pain only partially relieved by
standard ulcer therapy, and recurrent hematemesis or melena,
Moreover, it is not shown that any demonstrated anemia or
claimed weight loss is productive of definite impairment of
health.

The evidence of record includes a history of the veteran�s
treatment for his disability, beginning in 1961 and the
veteran�s reported symptoms of abdominal pain, problems with
his bowels, periodic vomiting with blood, blood in his stools
and nosebleeds.  However, the symptoms complained of as well
as the objective symptomatology demonstrated in the record do
not meet the criteria for an evaluation of 60 percent.  There
is no diagnosis of record stating that the veteran�s service-
connected duodenal ulcer is severe and accompanied by pain
requiring standard ulcer therapy.  In fact, the extensive
medical records reveal no evidence of active ulceration.

Although the veteran�s medical records include a reported
history of weight loss, the degree of weight loss does not
meet the criteria required for a 60 percent evaluation.
Records show that in the 1960�s, when the veteran first
sought treatment for his disability, his weight was 126
pounds and the lowest reported weight of record is 119
pounds.  The most recent examination, the November 1995 VA
examination, reported the veteran�s weight as 125 pounds.
Therefore, such weight loss during the veteran�s years of
treatment for his disability does not show weight loss
considered to be productive of a definite impairment of
health.

The Board also finds that the veteran does not meet the
criteria for a rating under Diagnostic Code 7308.  The
medical evidence, discussed above, does not demonstrate that
the veteran has experienced the symptoms of sweating,
circulatory disturbance after meals, hypoglycemic symptoms,
and weight loss with malnutrition which is required for a 60
percent rating under Diagnostic Code 7308.  In fact, the
Board notes that the veteran�s subjective complaints and any
of the objectively demonstrated symptomatology are clearly
contemplated by the 40 percent disability evaluation under
either Diagnostic Code 7348, 7305, or 7308.

The medical evidence does show a history of residuals from
his vagotomy and Billroth II reconstruction for a chronic
duodenal ulcer, which meets the criteria for a 40 percent
rating.  However, as discussed, the November 1995 VA
examination kidney-ureter-bladder x-ray was negative for
obstructions and perforations and the upper gastrointestinal
x-ray showed satisfactory status post Billroth II
gastrectomy.

Since there is no medical evidence showing that the veteran
meets the 60 percent evaluation criteria under any of the
pertinent diagnostic codes, an evaluation in excess of the
currently assigned as 40 percent is not warranted even with
consideration of the provisions of 38 C.F.R. � 4.7 (1995).
Similarly, the Board finds that an evaluation in excess of
this evaluation on an extraschedular basis pursuant to
38 C.F.R. � 3.321(b)(1) (1995) is not appropriate as it is
clear that the veteran has not been hospitalized since April
1993 and there is no persuasive evidence of record that
indicates that marked interference with employment may be
attributed to that disability.  Essentially, the issue before
the Board is the current degree of impairment shown in light
of the Rating Schedule and although the veteran testified in
1994 that he had not been able to work as an electrician for
four years, the medical evidence of record does not contain
any competent medical opinion that the veteran�s service-
connected disability is responsible, particularly in light of
the severity of the veteran�s other nonservice-connected
disabilities.  In fact, the veteran testified at his personal
hearing that he was preparing his home for an auction sale
and he reported working intermittently as an electrician on
the March 1993 progress reports.  The Board finds that any
subjective complaints of abdominal pain, vomiting, weight
loss and anemia are considered by the current evaluation.

Likewise, the provisions of 38 U.S.C.A. � 5107(b) (West 1991)
are not for application in this case as the Board has
determined that an approximate balance of negative and
positive evidence is not presented by the evidence.

ORDER

The appeal is denied.

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

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -


judge_norm: WAYNE M BRAEUER

text: The veteran's VA disability compensation was properly withheld in order to recoup the full amount of his special separation benefit received under 10 U.S.C. § 1174(a). The appeal is denied.

text:
Citation NR: 9610000
Decision Date: 04/09/96		Archive Date: 04/24/96
DOCKET NO.  94-26 472	)	DATE
	)
	)

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

THE ISSUE

Whether the veteran's disability compensation should be
withheld to recoup the amount of his special separation
benefit under 10 U.S.C. � 1174(a).

REPRESENTATION

Appellant represented by:	AMVETS

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran served on active duty from June 1980 to December
1992.  This is an appeal from a July 1993 action by the
Department of Veterans Affairs (VA) Regional Office, Detroit,
Michigan, which determined that the full amount of the
veteran's VA disability compensation should be withheld to
recoup his special separation benefit under authority of
10 U.S.C. � 1174(a).

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in substance, that although he received
a one-time payment of $33,358.50, 20 percent of that amount
or $6,671.70 went for taxes.  That left a balance of
$26,686.80 paid to him.  The veteran maintains that he should
not have to repay the gross amount received from the service
department to the VA.  The veteran feels that that is simply
not fair.  If he had known that a law permitted the
Government to take back everything that was promised him, his
decision to leave the U.S. Air Force and his career and way
of life would have been very, very different.

CONTENTIONS OF APPELLANT ON APPEAL

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter
and for the following reasons and bases, it is the decision
of the Board that the veteran's VA disability compensation
was properly withheld to recoup his special separation
benefit under 10 U.S.C. � 1174(a).

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.

2.  The veteran received a special separation benefit payment
of $33,358.50 at the time of his release from active duty.

3.  By rating action dated in July 1993, service connection
was established for several conditions, rated 40 percent
disabling in combination.

4  The veteran was notified in July 1993 that his award of VA
disability compensation, effective in February 1993, would be
withheld until the full amount of his payment of $33,358.50
had been recovered.  The veteran appealed from that decision.

CONCLUSION OF LAW

The veteran's VA disability compensation was properly
withheld in order to recoup the full amount of the special
separation benefit of $33,358.50, received by him under
10 U.S.C. � 1174(a).  38 U.S.C.A. �� 5107, 5304 (West 1991);
38 C.F.R. � 3.700(a)(5) (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The concept of whether a claim is "well grounded" applies to
the character of the evidence presented.  Where, as here,
there is no doubt as to the evidence, but only the law and
its meaning, the concept of well grounded is inapplicable.
38 U.S.C.A. � 5107(a).

The record reflects that when the veteran was released from
active duty, he was paid the sum of $33,358.50 as a special
separation benefit payment.  In a July 1993 rating action,
service connection was established for several conditions,
rated 40 percent disabling in combination.

Later in July 1993, the veteran was informed by the regional
office that his VA disability compensation of $463 per month,
effective in February 1993, would be withheld until the full
amount of the payment of $33,358.50 had been recovered.  The
veteran appealed from that decision.

A veteran who has received separation pay may receive
disability compensation for disability incurred in or
aggravated by service prior to the date of receipt of the
separation pay subject to recoupment of the total amount
received as separation pay.  38 U.S.C.A. � 5304; 38 C.F.R.
� 3.700(a)(5).

The question of whether VA disability compensation should be
offset to recoup the amount of special separation benefits
received by a veteran under authority of 10 U.S.C. � 1174(a)
was considered by the General Counsel of the VA.  In a June
1992 Precedent Opinion (O.G.C. Precedent Opinion 14-92), the
General Counsel noted that the Defense Authorization Act,
Public Law 102-190, added Section 1174(a), creating a
lump-sum benefit designated as a special separation benefit
and Section 1175 creating an annuity benefit designated as a
voluntary separated incentive to Title 10 of the United
States Code.  The purpose of the sections was to encourage
service members who would otherwise face possible involuntary
separation or denial of reenlistment to voluntarily separate
from service while offering a choice between the two
programs.  The General Counsel held that in accordance with
the provisions of 10 U.S.C.A. � 1174(a) and 38 C.F.R.
� 3.700, VA disability compensation should be offset to
recoup the amount of special separation benefits received by
a former member of the Armed Forces.  The precedent opinion
of the General Counsel of the VA is binding on the Board.
38 C.F.R. � 20.101(a).  Accordingly, it follows that the
veteran's VA disability compensation was properly withheld in
order to recoup the full amount of the special separation
benefit received by him under authority of 10 U.S.C.
� 1174(a) and an allowance of the veteran's appeal is not in
order.  38 U.S.C.A. � 5304; 38 C.F.R. � 3.700(a)(5).

The veteran has maintained that although he received a
one-time payment of $33,358.50, 20 percent of that sum or
$6,671.70 went for taxes, leaving a balance of $26,686.80
paid to him.  He has asserted that the gross amount of his
special separation benefits should not be recouped from his
VA disability compensation.  However, as noted previously,
under the applicable statute and regulation, the VA is
required to withhold the veteran's VA disability compensation
to recoup the full amount of the special separation benefit
received by him.  In another opinion of the VA General
Counsel, O.G.C. Precedent 67-91, 56 Fed. Reg. 50130 (1991),
regarding recoupment of military disability severance pay
from VA disability compensation, it was indicated that tax
issues such as those presented by the veteran are beyond the
purview of the VA and involve questions for resolution, at
least initially, by the Internal Revenue Service (IRS) and,
perhaps ultimately by the Courts.

ORDER

The veteran's VA disability compensation was properly
withheld in order to recoup the full amount of his special
separation benefit received under 10 U.S.C. � 1174(a).  The
appeal is denied.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, � 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.


judge_norm: JAMES W ENGLE

text: The United States Court of Veterans Appeals (Court) has held that the duty of VA to assist veterans in the development of their claims, under 38 U.S.C.A. § 5107(a) (West 1991, amended by Supp. 1995) and 38 C.F.R. § 3.103(a) (1995), as set forth by the Court in Littke v. Derwinski, 1 Vet.App. 90 (1990), requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, this case is REMANDED for the following:

text:
Citation NR: 9611000
Decision Date: 04/24/96		Archive Date: 04/30/96
DOCKET NO.  94-06 730	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Military Order of the Purple
Heart

ATTORNEY FOR THE BOARD

C. Hancock, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1969 to February
1979.

This appeal arises from a rating decision of October 1993, in
which the St. Petersburg, Florida, Regional Office (RO),
determined that new and material evidence had not been
received to reopen a claim for service connection for post-
traumatic stress disorder (PTSD).

REMAND

Review of the record reveals that the veteran, through his
representative, has requested that this case be remanded for
additional development to include efforts to verify the
reported stressor incidents which occurred on the U.S.S.
Oriskany (CVA-34).

The veteran contends, in essence, that his current PTSD is
related to his period of active service.  He specifically
alleges, as stressful incidents productive of his PTSD,
witnessing a fellow airman being "sucked" into the intake of
an airplane, and, subsequently, having to gather up the
deceased airman's remains; seeing a seaman killed, on
September 25, 1972, as a result of being "toasted" by
aircraft engines; and serving, prior to going to Vietnam, in
a medical capacity, by "receiving wounded" from Vietnam
"almost every day."  He also asserts that he was treated
"several times" during his period of active service for
"stress related symptoms."

After a review of the record, and in view of the veteran�s
request, it is the opinion of the Board of Veterans' Appeals
(Board) that additional development of the evidence would be
helpful.  The Board believes, accordingly, that certain
information, such as veteran's service personnel records, as
well as any relevant morning reports, and reports of
personnel casualties for the units the veteran served with
during his period of active service, including his period of
service in Vietnam, would be helpful.  In addition, the Board
likewise notes, that an attempt to verify any stressors
reported by the veteran would also be helpful.

The United States Court of Veterans Appeals (Court) has held
that the duty of VA to assist veterans in the development of
their claims, under 38 U.S.C.A. � 5107(a) (West 1991, amended
by Supp. 1995) and 38 C.F.R. � 3.103(a) (1995), as set forth
by the Court in Littke v. Derwinski, 1 Vet.App. 90 (1990),
requires that VA accomplish additional development of the
evidence if the record currently before it is inadequate.
Accordingly, this case is REMANDED for the following:

1.  The RO should contact the veteran and
request that he furnish a written
statement, listing with as much
specificity as possible, the stressors he
claims to have experienced during his
period of active service, including those
experienced in Vietnam.  He should be
requested to furnish the dates of any
events he witnessed or participated in,
and the names of any persons he saw
wounded or killed.

2.  The RO should attempt to secure all
of the veteran's service personnel
records, as well as any relevant morning
reports, and reports of personnel
casualties for the units the veteran
served with during his period of active
service, including his period of service
in Vietnam.  Any records so obtained
should be associated with the veteran's
claims folder.

3.  The RO should contact the United
States Navy and Joint Services
Environmental Support Group (ESG), 7798
Cissna Road, Springfield, Virginia 22150.
Those organizations should be requested
to attempt to verify any stressors
reported by the veteran.

4.  The veteran should be afforded an
examination by two VA psychiatrists in
order to determine the correct
psychiatric diagnosis.  In order that
they have an accurate history, the claims
folder should be made available to them
prior to the examination.  Any indicated
psychological testing should be
conducted.

5.  Following completion of the foregoing
examinations, the RO must review the claims
folder and ensure that all of the foregoing
developmental 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 reports.  If the
examination reports do not include fully
detailed descriptions of pathology or
adequate responses to the specific opinions
requested, the report must be returned to the
appropriate examiner for corrective action.
See 38 C.F.R. � 4.2 (1995), which states in
pertinent part, "if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return the
report as inadequate for evaluation
purposes."  See also Green v. Derwinski,
1 Vet.App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet.App. 461, 464 (1992); and
Ardison v. Brown, 6 Vet.App. 405, 407 (1994).

6.  Finally, the RO should consider the
issue on appeal; specifically, whether
new and material evidence has been
received to reopen a claim of entitlement
to service connection for post-traumatic
stress disorder.

Once the foregoing has been accomplished and, if the veteran
remains dissatisfied with the outcome of the adjudication of
his claim, both the veteran and his representative should be
furnished a supplemental statement of the case covering all
the pertinent evidence, law, and regulatory criteria.  They
should be afforded a reasonable period of time in which to
respond.  Thereafter, the case should be returned to the
Board for further appellate consideration.

The Board intimates no opinion as to the final outcome of
this case.  The veteran needs to take no action until so
informed.  The purposes of this REMAND are to assist the
veteran; to obtain additional evidence and clarifying
information; and to ensure compliance with due process
considerations.

	JAMES W. ENGLE
	Acting Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991, amended by Supp. 1995),
only a decision of the Board of Veterans' Appeals is
appealable to the United States Court of Veterans Appeals.
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. � 1100(b) (1995).
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