judge_norm: J F GOUGH

condition: respiratory

text:
Citation Nr: 0203000
Decision Date: 04/03/02    Archive Date: 04/11/02

DOCKET NO.  00-10 049	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim of service connection for bronchial asthma.

REPRESENTATION

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

WITNESS AT HEARINGS ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

K. Conner, Counsel

INTRODUCTION

The veteran had active naval service from January to August
1942.  This matter comes to the Board of Veterans' Appeals
(Board) from an April 2000 rating decision of the Department
of Veterans Affairs (VA) Phoenix Regional Office (RO) which
denied service connection for bronchial asthma.  In June
2000, the veteran testified at a hearing at the RO and in
December 2001, he appeared and testified at a a Travel Board
hearing.

It is noted that service connection for bronchial asthma was
previously denied by the RO in a February 1945 rating
decision.  That decision is final and is not subject to
revision on the same factual basis.  38 U.S.C.A. �� 7104,
7105.  Yet, if new and material evidence is presented as to a
previously disallowed claim, it will be reopened.  See 38
U.S.C.A. 5108; 38 C.F.R. 3.156(a).

In this case, in the April 2000 rating decision on appeal, it
is unclear whether the RO addressed the issue of whether new
and material evidence had been submitted to reopen the claim
of service connection for asthma.  Moreover, the veteran was
not provided with the law and regulations pertaining to
finality and new and material evidence in either the April
2000 Statement of the Case or the July 2000 Supplemental
Statement of the Case.  Nonetheless, the Board is obligated
by 38 U.S.C.A. 5108, 7104(b) to address whether new and
material evidence has been submitted prior to addressing the
merits of this claim.  See Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).  Thus, the issue has been framed as set
forth on the cover page of this decision.

It is apparent that the veteran was not be prejudiced by the
Board's consideration of the new and material issue in the
first instance, given the favorable decision below to reopen
the claim.  Bernard v. Brown, 4 Vet. App. 3 84 (1993).

At the time of his December 2001 hearing, the veteran
submitted a copy of a November 1991 uninterpreted audiogram,
possibly to reopen a previously denied claim of service
connection for bilateral hearing loss and/or tinnitus.  The
veteran is advised to contact the RO to make his intentions
clear, as the law requires that informal claims must identify
the benefit sought.  38 C.F.R. � 3.155(a) (2001).

FINDINGS OF FACT

1.  By February 1945 rating decision, the RO denied service
connection for asthma; although the veteran was informed of
this decision and of his right to appeal, he did not submit a
timely appeal.

2.  The evidence added to the record since the February 1945
rating decision includes clinical records, not previously
considered, which bear directly and substantially on the
specific matters under consideration regarding the issue of
service connection for asthma.

3.  The evidence now of record indicates that the veteran
currently has bronchial asthma which had its inception during
his period of active naval service.

CONCLUSIONS OF LAW

1.  The February 1945 rating decision denying service
connection for bronchial asthma is final.  38 U.S.C.A. �
7105(c) (West 1991 & Supp. 2001); 38 C.F.R. � 20.1103 (2001)
(formerly Veterans Regulation No. 2(a), pt. II, � III; VA
Regulations 1008 and 1009 (effective Jan. 25, 1936 to Dec.
31, 1957).

2.  New and material evidence has been received to warrant
reopening of the claim of service connection for bronchial
asthma.  38 U.S.C.A. �� 5107, 5108 (West 1991 & Supp. 2001);
38 C.F.R. � 3.156 (2001).

3.  Bronchial asthma was incurred in active service.  38
U.S.C.A. �� 1110, 5107 (West 1991 & Supp. 2001); 38 C.F.R.
� 3.303 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board notes that there has been a change in
the law during the pendency of this appeal with the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA).  That
law provides that upon receipt of a complete or substantially
complete application, the Secretary shall notify the claimant
and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim.  38 U.S.C. � 5103 (West Supp. 2001).  The VCAA
also requires the Secretary to make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim for benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  38 U.S.C. � 5103A (West Supp.
2001).

In this case, the Board finds that VA has satisfied its
duties to the veteran, under both former law and the new
VCAA.  The record indicates that VA has conducted appropriate
evidentiary development in this case.  The Board further
notes that the veteran was informed, via a decision of the RO
and a Statement of the Case, of the nature of the evidence
needed to substantiate his claim.  As VA has fulfilled the
duty to assist, and as the change in law has no additional
material effect on adjudication of this claim, the Board
finds that it can consider the merits of this appeal without
prejudice to the veteran.  Bernard, supra.  In any event,
given the favorable outcome of this decision, it is obvious
that the veteran was not prejudiced by any failure to assist
or notify him under this new legislation.  Id.

I.  Factual Background

The veteran's service medical records show that at the time
of his service enlistment medical examination in January
1942, his respiratory system was determined to be normal on
clinical evaluation.  No other pertinent abnormality was
recorded.

In March 1942, the veteran experienced sudden difficulty
breathing and wheezing.  He was admitted to the hospital and
diagnosed with asthma.  In May 1942, he had another episode
of acute respiratory distress with loud wheezing in both
lungs.  Laboratory testing revealed positive allergenic tests
for short ragweed, timothy, oak, flaxseed, orchard grass, and
horse dander.  The diagnosis was asthma due to extrinsic
factors.  Based on his disability, a medical board determined
that the veteran was unfit for further service.  It was
further determined that his disability was incurred in the
line of service and did not exist prior to enlistment.

At his July 1942 service discharge medical examination, it
was noted that the veteran was not physically qualified for
active service due to asthma.

In October 1944, the veteran filed a claim of service
connection for asthma.  In connection with his claim, he
underwent VA medical examination in December 1944, at which
time he reported that he had asthma in service.  He indicated
that he had developed asthma in March 1942, that he received
a medical discharge from service in August 1942, and that he
felt relatively well since that time until May 1944, when he
began having increased asthma attacks about every two weeks.
On examination, the examiner noted many inspiratory,
respiratory wheezes before and after cough throughout the
entire chest.  The diagnoses included bronchial asthma.

By February 1945 rating decision, the RO denied service
connection for bronchial asthma, finding that the condition
had preexisted the veteran's military service and had not
been aggravated therein.  The veteran was advised in writing
later in February 1945 of this decision, as well as his
procedural and appellate rights, but he did not appeal that
determination.

In January 2000, the veteran submitted a request to reopen
his claim of service connection for asthma.  In support of
his claim, he submitted an August 1950 letter from a private
physician, who indicated that the veteran had had asthma
since childhood, increasing in severity.  He indicated that
the asthma was now seasonal in type and that the strongest
reactions were to dust, ragweed, and a multitude of others.
He indicated that the veteran had been hospitalized earlier
that month for treatment of an asthma attack, and he noted
that the veteran had reported that he had been symptom free
in Arizona, so he advised him to return to that environment.

Also submitted by the veteran were private treatment records,
dated from February 1991 to 1999.  In pertinent part, these
records show that he was treated during this period for
asthma and chronic obstructive pulmonary disease.  A February
1991 treatment record notes that he denied a history of
asthma since 1965.  He indicated that his current problem
began in November 1990, when he had a chest cold.  The
diagnosis was chronic obstructive pulmonary disease.  The
examiner noted the etiology was probably multifactorial,
including prior asthma, cigarette smoking, and probable
sinusitis.

By April 2000 decision, the RO noted that the veteran's claim
of service connection for bronchial asthma had been
previously denied.  It was determined that the additional
evidence submitted did not show that the veteran's
preexisting asthma was permanently worsened as a result of
his active service.

The veteran appealed the RO determination, arguing that as he
had been medically discharged from service due to asthma,
that indicated that his condition had been incurred in or
aggravated in service.  In support of his appeal, he
submitted a copy of a May 1939 newspaper photograph showing
him as a member of his high school baseball team.  He argued
that he would not have been able to play baseball had he had
asthma prior to service.

Also in support of his appeal, he submitted letter from his
brother and sister who indicated that they remembered that he
had difficulty breathing as a child.  His brother noted that
due to his breathing problems, the veteran moved to Arizona
in 1950 on the advice of the family doctor.

A July 2000 letter from J. Ruzi, M.D., notes that, based on
his medical records, the veteran had a long history of
chronic asthma, dating back many years.  The impressions
included asthma "which by history is chronic and
longstanding."  Spirometric deterioration over the past 10
years was also noted.

At his June 2000 and December 2001 hearings, the veteran
testified that although he had had breathing difficulties as
a child, such as croup, pneumonia, and bronchitis, he had
first been diagnosed with asthma in service.  He indicated
that he was medically discharged from service and returned to
New York to help his family in the dairy business.  He
indicated that his asthma symptoms continued and in 1950, he
moved to Arizona on the advice of a pulmonary specialist.  He
indicated that in 1969, he returned to New York to be with
his ill mother, and stayed until 1997 when he returned to
Arizona permanently.  He stated that his asthma was much more
symptomatic in climates such as New York, than in Arizona.

II.  New and material evidence

Despite the finality of a prior adverse decision, a claim
will be reopened and the former disposition reviewed if new
and material evidence is furnished with respect to the claim
which has been disallowed.  38 U.S.C.A. � 5108 (West 1991);
38 C.F.R. � 3.156 (2001).

Pursuant to 38 C.F.R. � 3.156(a), "new and material
evidence" is evidence not previously submitted which bears
directly and substantially upon the specific matter under
consideration, is not cumulative or redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim.  The U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) has emphasized that
while not every piece of new evidence is "material," some
new evidence may well contribute to a more complete picture
of the circumstances surrounding the origin of a veteran's
injury or disability, even where it may not eventually
convince VA to alter its prior adverse decision.  See Hodge
v. West, 155 Fed. 3rd 1356 (Fed. Cir. 1998).

In this case, the evidence added to the claims folder since
the last final rating decision in February 1945 includes
clinical records noting a long history of asthma.  Also of
record are statements from the veteran and his family
corroborating this history and noting that he was first
diagnosed with asthma in service.  This evidence is new as it
was not previously of record.  Moreover, it is material as it
contributes to a more complete picture of the circumstances
surrounding the origin of the veteran's disability.  Thus,
the reopening requirements of 38 U.S.C.A. � 5108 have been
met and the Board must now address the claim of service
connection for bronchial asthma on the merits.

III.  Service connection for bronchial asthma

Service connection may be granted for disability resulting
from injury suffered or disease contracted in the line of
duty or for aggravation of a pre-existing injury or disease
in the line of duty.  38 U.S.C.A. � 1110 (West 1991);
38 C.F.R. �� 3.303, 3.304, 3.306 (2001).  Service connection
may also be granted for any disease diagnosed after discharge
when all the evidence, including that pertinent to service
establishes that the disease was incurred in service.
38 C.F.R. � 3.303(d) (2001).

A veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service except as to
defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable evidence
demonstrates that an injury or disease existed prior thereto.
Only such conditions as are recorded in examination reports
are to be considered as noted.  38 U.S.C.A. � 1132, 1137; 38
C.F.R. � 3.304 (2001).

Under 38 U.S.C.A. � 1153 and 38 C.F.R. � 3.306 (2001), a
preexisting injury or disease will be considered to have been
aggravated by service where there is an increase in
disability during such service, unless there is a finding
that the increase in disability is due to the natural
progress of the disease.  Aggravation may not be conceded
where the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during, and
subsequent to service.

The veteran seeks service connection for bronchial asthma,
alleging that such disorder had its onset in service.  As
noted above, the law presumes a veteran to be in sound
condition when enrolled for service, except as to defects,
infirmities, or disorders noted at the time of enrollment.
38 U.S.C.A. � 1111; 38 C.F.R. � 3.304(b).  A disorder may be
shown to have preexisted service if it is noted at entrance
into service or where clear and unmistakable evidence rebuts
the legal presumption of sound condition at entrance for
disorders not noted at entrance.

In this case, the veteran's service entrance medical
examination report is negative for the presence of asthma or
any other respiratory disorder.  Consequently, the Board
concedes that a presumption of a sound condition at service
entrance initially attaches in this case.  See Crowe v.
Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. � 3.304.

The burden of proof is now on VA to rebut the presumption by
producing clear and unmistakable evidence that the veteran's
bronchial asthma existed prior to service.  The U.S. Court of
Appeals for Veterans Claims has described this burden as "a
formidable one," Kinnaman v. Principi, 4 Vet. App. 20, 27
(1993), and has held that in determining whether there is
clear and unmistakable evidence that the disorder existed
prior to service, the Board must conduct an impartial and
thorough review of all the evidence of record.  Crowe, 7 Vet.
App at 245-6.

In regard to the breadth of the required inquiry in
determining whether the presumption of soundness has been
rebutted, the Federal Circuit has recently emphasized that 38
C.F.R. � 3.304(b)(2) provides that the finder of fact should
consider all medically accepted evidence bearing on whether
the service member was suffering from the disease or injury
in question prior to induction and should give weight to
particular evidence based on accepted medical standards and
medical knowledge regarding the known characteristics of
particular diseases.  In particular, the regulation permits
the finder of fact to consider records made "prior to,
during or subsequent to service" concerning the inception of
the disease.  Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000).

In this case, the Board finds that the presumption of
soundness has not been rebutted as to the veteran's asthma.
Initially, the Board observes that the veteran's service
medical records contain no findings of preexisting asthma.
Rather, a military medical board determined that the
veteran's asthma, first diagnosed in March 1942, was incurred
in the line of service and did not exist prior to enlistment.

While there is some indication in the record that the veteran
had respiratory difficulty as a child, it is noted that he
was never diagnosed with asthma prior to service.  Rather,
his pre-service respiratory symptoms were reportedly
attributed to other causes, such as the croup and pneumonia.
The Board finds that this lay evidence of pre-service
symptoms is not clear and unmistakable evidence of the
existence of pre-service asthma.  There is no other evidence
of record sufficient to meet the standards of clear and
unmistakable evidence of the existence of a pre-service
asthma.  38 C.F.R. � 3.304.  Thus, the Board concludes that
the veteran's asthma did not preexist his active service.  38
U.S.C.A. � 1111; 38 C.F.R. � 3.304.

Next, the question becomes whether the veteran currently has
asthma which had its inception during his active service.  In
this regard, the record contains a current diagnosis of
chronic asthma.  Moreover, the medical evidence notes that
the veteran's asthma is longstanding, although apparently
episodic.  Based on this evidence, the Board believes that
service connection for asthma is warranted.

ORDER

Service connection for bronchial asthma is granted.

	J.F. GOUGH
	Member, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: STEVEN L COHN

judge_role: Member, Board of Veterans' Appeals

disposition: denied

text:
Citation Nr: 0204000
Decision Date: 05/01/02    Archive Date: 05/14/02

DOCKET NO.  00-11 086	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Joseph A. Rose, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1944 to June 1946.

This matter comes before the Board of Veteran's Appeals (BVA
or Board) from a March 2000 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan, which denied the benefit sought on appeal.

FINDINGS OF FACT

1.  The veteran has been notified of the evidence needed to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.

2.  Bilateral hearing loss was not manifested during service
or within one year of service, and is not otherwise shown to
be related to service.

CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by
active service, nor may it be presumed to have been incurred
in service.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5103,
5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. �� 3.303,
3.307, 3.309, 3.385 (2001); 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. �� 3.102,
3.159).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

This appeal arises out of the veteran's contention that he is
entitled to service connection for bilateral hearing loss.
The veteran maintains that his current hearing loss is due to
his active service, as he was a drill instructor and military
policeman.

As a preliminary matter, the Board notes that the Veterans
Claims Assistance Act of 2000 (VCAA) provides that VA shall
make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the veteran's claim for a
benefit under a law administered by VA.  See 38 U.S.C.A. ��
5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified at 38 C.F.R. �� 3.102, 3.159).

VA has a duty under the VCAA to notify the veteran of any
information and evidence needed to substantiate and complete
a claim.  The Board finds that the RO has notified the
veteran of the evidence necessary to substantiate his claim.
The veteran was provided a copy of the March 2000 rating
decision, the May 2000 Statement of the Case, Supplement
Statements of the Case in September 2000 and September 2001,
and a March 2001 letter advising the veteran of the changes
brought about under VCAA.  This information satisfies the
requirements of 38 U.S.C.A. � 5103 of the new statute.  Under
these circumstances, the Board finds that the notification
requirement of the VCAA has been satisfied.

VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim.  The Board
notes that the claims file includes the veteran's service
medical records, post-service treatment records and a June
2000 statement from Carl Kelke, Ph.D., Audiologist.  The
Board notes that while the record does not contain the
medical treatment records referred to in Dr. Kelke's
statement to VA, the Board finds that it is not necessary to
obtain these records in order to have an equitable evaluation
of the veteran's claim because Dr. Kelke summarized his
medical findings in his statement.  Further, the veteran was
notified of the evidence needed to substantiate his claim and
that the statement from Dr. Keller did not mention that the
veteran's hearing loss was related to service.  Subsequent to
this, the veteran has not indicated that he had an additional
evidence and he did not identify any unobtained evidence that
might aid his claim.

With respect to a VA examination, the assistance provided to
the veteran shall include providing a medical examination or
obtaining a medical opinion when such examination or opinion
is necessary to make a decision on the claim.  An examination
or opinion shall be treated as being necessary to make a
decision on the claim if the evidence of record, taking into
consideration all information and lay or medical evidence
(including statements of the claimant) contains competent
evidence that the claimant has a current disability, or
persistent or recurring symptoms of disability; and indicates
that the disability or symptoms may be
associated with the veteran's active service; but does not
contain sufficient medical evidence for VA to make a decision
on the claim.  See 38 U.S.C.A. �� 5103, 5103A; 66 Fed. Reg.
45630-45632 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. � 3.159).

While the veteran was not given a VA medical examination, the
Board finds that an examination or medical opinion is not
necessary for an equitable evaluation of the veteran's claim
in view of the medical evidence which is of record, including
the service medical records and post-service medical
evidence.  As it is further explained below, the service
medical records are negative for any complaints or findings
of hearing loss or problems with noise exposure and there is
no competent medical evidence in the record showing that the
veteran's current bilateral hearing loss had its onset in
service or is related to service.  The medical evidence
submitted by the veteran indicated that a history of noise
exposure contributed at least in part to his hearing loss,
but there was no reference to service or basis for the
opinion.  Further, neither the service medical records nor
any event in service was noted or discussed in the medical
report.  In view of the evidence of record, the Board finds
that an additional examination is not needed to decide this
claim.  The Board thus finds that no further action is
necessary to satisfy the duty to assist the veteran in this
appeal.  Moreover, the Board notes that in a March 2001
letter, the RO informed the veteran of the VCAA, as it
affects his claim.  Accordingly, the Board concludes that the
veteran's appeal is ready for disposition.

Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity
and sufficient observation to establish chronicity at the
time.  If chronicity in service is not established, a showing
of continuity of symptoms after discharge is required to
support the claim.  38 C.F.R. � 3.303(b).  Service connection
may also be granted for any disease diagnosed after discharge
when all of the evidence establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).  Also, certain
chronic diseases, including sensorineural hearing loss, may
be presumed to have been incurred during service if
manifested to a compensable degree within one year of
separation from active military service.  38 U.S.C.A.
�� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.  For purposes
of applying VA law, impaired hearing is considered a
disability when the requirements of 38 C.F.R. � 3.385 are
met.

The veteran's service medical records show that the initial
examination for service in May 1944 was negative for any
hearing loss.  There was no reference to hearing loss in
service or any complaints or findings of hearing loss.  On
separation examination in May 1946, the veteran's hearing was
reported to be 15/15 for whispered voices and spoken voices,
bilaterally.  Clinical findings on examination were negative
for hearing loss.

In January 2000, the veteran submitted private audiograms
conducted in November 1993 by Frank Brettschneider, D.O., and
in November 1996 by Better Hearing Centers.  The audiograms
reflect hearing loss without any accompanying remarks or
interpretations.  There is no mention of noise exposure or
any reference to service.

A statement from Dr. Kelke dated June 2000 noted that he
originally saw the veteran in October 1990.  At that time,
the veteran reported medical problems and noise exposure
history as a cause of his hearing disorder.  The original
test results indicated unaided binaural loss of hearing that
was sensori-neural in nature and moderately depressed from
normal.  In addition it was also noted that his speech
discrimination ability was reduced in each ear.  Dr. Kelke
also stated that he saw the veteran in November 1996, and
that his hearing loss had progressed downward in each ear and
he had essentially no useful hearing in the left ear.  Dr.
Kelke indicated that "[i]t could be assumed that his noise
history has at least contributed to his present hearing loss
but probably not totally responsible as a cause."  There was
no reference to service or event from service identified in
the statement.

Upon review, the Board notes that the veteran is currently
suffering from bilateral hearing loss, however, there is no
medical evidence that the veteran had any hearing loss in
service.  In fact, the veteran's hearing was reported to be
normal upon separation from service with the first evidence
in the record that the veteran had any hearing loss was in
1990, approximately 44 years after service.  The medical
records do not show that hearing loss had its onset in
service, within a year of separation from service or that
there was a continuity of symptoms after service.

There is also no competent medical evidence relating the
veteran's hearing loss to service.  Private hearing tests
dated in 1993 and 1996 include no reference to an etiology
for the findings reported.  The only evidence of record
indicating a cause for the veteran's bilateral hearing loss
is the statement from Dr. Kelke.  However, Dr. Kelke did not
opine that the veteran's hearing loss was related to service.
Instead, Dr. Kelke opined that it could be assumed that noise
exposure at least contributed to his present hearing loss.
While Dr. Kelke related the veteran's hearing loss at least
in part to noise exposure, there is no reference to service
or any description of noise exposure in service as a basis
for his opinion.

The Board notes that in the February 2002 informal hearing
presentation, the veteran's representative indicates that the
veteran has submitted the opinion of an audiologist who
indicates that his noise exposure in service at least
contributed to his hearing loss.  It appears that the
representative was referring to Dr. Kelke's statement,
however, Dr. Kelke does not mention the veteran's service.
Indeed, the September 2000 Supplemental Statement of the Case
advised the veteran of the absence of any reference to
service in the opinion from Dr. Kelke.  Following this the
veteran has not provided or identified any additional
evidence to support his claim.  Dr. Kelke's opinion, without
any reference to service or noise exposure in service, is not
persuasive for finding that the veteran's current hearing
loss is related to service.  The Board finds that the
separation examination from service, which showed that the
veteran's hearing was normal without any complaints of
hearing problems, coupled with the first evidence of hearing
loss in 1990, approximately 44 years after service to be
persuasive evidence against the veteran's claim that his
hearing loss is related to service.

In short, there is no competent medical evidence showing that
the veteran's current bilateral hearing loss had its onset in
service, within one year of separation from service or is
otherwise related to service.  In regard to the veteran's
statements that his hearing loss is related to his duties as
a drill instructor or MP in service, the Board notes that
veteran does not appear to have any medical expertise, and as
such, he is not competent to offer an opinion as to medical
etiology for his disability.  See Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992) (laypersons may be competent to
provide an eye-witness account of a veteran's visible
symptoms, but they are simply not capable of offering
evidence that requires medical knowledge).

In summary, the Board finds that the preponderance of the
evidence is against the veteran's claim for service
connection for bilateral hearing loss.  In reaching this
conclusion, the Board acknowledges that under 38 U.S.C.A.
� 5107(b), all doubt is to be resolved in the claimant's
favor in cases where there is an approximate balance of
positive and negative evidence in regard to a material issue.
In this case, as the preponderance of the evidence is against
the veteran's claim, that doctrine is not for application.
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

ORDER

Entitlement to service connection for bilateral hearing loss
is denied.

	STEVEN L. COHN
	Member, Board of Veterans' Appeals

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

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


judge_norm: MARK D HINDIN

disposition: granted

text: Service connection for PTSD is granted.

text:
Citation Nr: 0205000
Decision Date: 05/23/02    Archive Date: 06/03/02

DOCKET NO.  96-27 666	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Associate Counsel

INTRODUCTION

The veteran had active service from March 1974 to April 1975.

This matter comes to the Board of Veterans' Appeals (Board)
from an April 1995 RO rating decision that denied service
connection for PTSD.  The veteran submitted a notice of
disagreement in June 1995, and the RO issued a statement of
the case in September 1995.  The veteran submitted a
substantive appeal in September 1995, and testified at a
hearing before a hearing officer in March 1996.  In March
2000, the Board remanded the case to afford the veteran the
opportunity for a hearing before a member of the Board at the
RO.  The veteran testified before the undersigned member of
the Board in February 2002.

FINDING OF FACT

The veteran experienced sexual trauma in service that
resulted in current PTSD.

CONCLUSION OF LAW

PTSD was incurred as a result of active service.  38 U.S.C.A.
� 1110 (West 1991 & Supp. 2001); 38 C.F.R. � 3.102 (2001);
38 C.F.R. � 3.304(f) (2001); 67 Fed. Reg. 10, 33.

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Assist and Provide Notice

There has been a significant change in the law during the
pendency of this appeal.  On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).

This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.  This law also
eliminates the concept of a well-grounded claim and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded.  This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date.  VCAA, Pub. L. No. 106-475, � 7, subpart
(a), 114 Stat. 2096, 2099-2100 (2000).  See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).

To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a)).  The implementing regulations are meant to define
terms used in the Act, and provide guidance for carrying out
the requirements of the Act.  The regulations, with the
exception of development in the case of attempts to reopen
finally denied claims made after August 21, 2001, are not
meant to bestow any new rights.  66 Fed. Reg. 45,629 (Aug.
29, 2001).  Thus, the veteran is not prejudiced by the
Board's initial application of the regulations to her claim.

Inasmuch as this decision grants the benefits sought, further
assistance in substantiating the claim is unnecessary.
Wensch v. Principi, 15 Vet App 362 (2001); see also 38
U.S.C.A. � 5103A(a)(2) (Secretary not required to provide
assistance "if no reasonable possibility exists that such
assistance would aid in substantiating the claim").

II.  Factual Background

Service medical records at the time of the veteran's pre-
enlistment examination in November 1973 show normal
psychiatric and neurologic systems.

Records indicate that the veteran was seen in the psychiatric
clinic in January 1975, at the request of her squadron.

A record of individual counseling dated in January 1975
reflects that the veteran reported for work on swing shift in
a very unstable, emotional state of mind; and that this
condition had prevailed for several weeks.  The veteran
reported family separation from her husband, and harassment
by people in her work center and in her dormitory.  The
counselor noted that the veteran's emotional state was
causing a serious morale problem, and was becoming disruptive
of aircraft maintenance.

Service medical records dated in March 1975 reveal that the
veteran complained of some personal problems secondary to her
job, and her status as being married to an officer.  The
veteran reported a desire to lose weight.  Valium was
prescribed.  The assessment was situational reaction.

On a "Report of Medical History" completed in March 1975, the
veteran reported nervous trouble, frequent trouble sleeping,
depression or excessive worry, and shortness of breath.  The
examiner noted that these complaints were due to the
veteran's being stationed separately from her husband.  Her
complaints of indigestion were noted as due to the dining
hall atmosphere.

Service medical records at the time of the veteran's
separation examination in March 1975 show normal psychiatric
and neurologic systems.  These records reflect that the
veteran gained 15 pounds since February 1975, due to a change
in eating habits.

Post-service medical records show that the veteran was first
referred for psychological evaluation in July 1994.  Symptoms
included extreme tearfulness, anxiety, and some anger.  The
veteran attributed these symptoms to an early history of
sexual assault (pre-military), and an exacerbation of
symptoms due to persistent sexual harassment in the military.
The veteran regularly attended individual therapy sessions.
She expressed hopelessness during periods of extreme stress.
She demonstrated persistent avoidance of stimuli associated
with sexual traumas.  She avoided activities that arouse
recollections, demonstrated marked detachment from others,
and was markedly fearful of intimacy.  She had shown
significant irritability and anger outbursts.  On psychologic
testing, scales specific to PTSD were found to be elevated at
clinically significant levels.  A VA psychologist summarized
that the veteran experienced significant levels of distress,
much of which was related to her military experience.
Records reflect a clinical diagnosis on Axis I of PTSD.

A summary of the veteran's counseling sessions at a Vet
Center, dated in April 1997, notes that she was first seen
from December 1995 through June 1996.  She presented with
symptoms of depression, flashbacks, intrusive thoughts,
shame, anger, uncontrollable crying spells, and
uncontrollable rage.  The veteran reported that the major
sexual harassment incident occurred during the winter months
around February 1975, shortly after the veteran's arrival to
Kadena (Japan) in December 1974.  The veteran also noted that
there were many continual daily incidents of lesser sexual
harassment by male military personnel in general.

A report of VA examination in May 1997 shows a diagnosis of
PTSD.  The examiner noted that the veteran had several
symptoms consistent with the DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (DSM IV) criteria for that
diagnosis.

A report of VA examination in January 1998 shows a diagnosis
of PTSD.  The examiner noted that, although the veteran had a
traumatic experience before military service (namely, rape),
she recovered from this and was able to relocate to
California, get married, and function well prior to entering
active service.  The veteran was considered healthy and sound
enough to be inducted.  The examiner noted that the extreme
degree of sexual harassment and gender discrimination to
which the veteran was subjected in service certainly
constituted a traumatic stressor.

The veteran was evaluated by a board of two VA psychologists
in June 1998.  The psychologists noted the veteran's
experiences that pre-dated her military service, and found
that the veteran may have been more prone to develop PTSD
from the further harassment that she alleged she suffered
during her short tour in service.  The psychologists noted,
however, that much more limiting of her capacity to function
on a day-to-day basis was the veteran's glaring personality
disorder coupled with her chronic pain syndrome.

Testimony and statements of the veteran in the claims folder
are to the effect that a judge advocate general (JAG) had
been preparing to file actions of gender discrimination and
slander in 1975, prior to the veteran's acceptance of an
early honorable discharge.

Service personnel records associated with the claims folder
include a letter, dated in April 1975, to the effect that the
veteran had received legal counseling from a JAG regarding
the proposal to separate her from service.

B.  Legal Analysis

Service connection may be granted for a disability resulting
from disease or injury which was incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303
(2001).

Every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time.
38 U.S.C.A. � 1111.  Service medical records of the veteran's
entry show normal psychiatric and neurologic systems, and the
Board presumes the veteran to have been in sound condition in
1974.  Parker v. Derwinski, 1 Vet. App. 522 (1991).  The
Board notes that there is no diagnosis of PTSD prior to
military service; nor is there clear and unmistakable
evidence that the veteran's current PTSD is related to
incidents that pre-dated military service (i.e., suicide
death of the veteran's father, and rape).

Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. �
4.125(a); a link, established by medical evidence, between
current symptoms and an inservice stressor; and credible
supporting evidence that the claimed inservice stressor
occurred.  If the evidence establishes that the veteran
engaged in combat with the enemy, and the claimed stressor is
related to that combat, her lay testimony alone may establish
the incurrence of the claimed inservice stressor in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of her service.  38
C.F.R. � 3.304(f); see also, Cohen v. Brown, 10 Vet. App. 128
(1997).

With respect to personal assaults, 38 C.F.R. � 3.304(f) was
amended in March 2002, as follows:

(3) If a post-traumatic stress disorder
claim is based on in-service personal
assault, evidence from sources other than
the veteran's service records may
corroborate the veteran's account of the
stressor incident.  Examples of such
evidence include, but are not limited to:
records from law enforcement authorities,
rape crisis centers, mental health
counseling centers, hospitals, or
physicians; pregnancy tests or tests for
sexually transmitted diseases; and
statements from family members,
roommates, fellow service members, or
clergy.  Evidence of behavior changes
following the claimed assault is one type
of relevant evidence that may be found in
these sources.  Examples of behavior
changes that may constitute credible
evidence of the stressor include, but are
not limited to:  a request for a transfer
to another military duty assignment;
deterioration in work performance;
substance abuse; episodes of depression,
panic attacks, or anxiety without an
identifiable cause; or unexplained
economic or social behavior changes.  VA
will not deny a post-traumatic stress
disorder claim that is based on in-
service personal assault without first
advising the claimant that evidence from
sources other than the veteran's service
records or evidence of behavior changes
may constitute credible supporting
evidence of the stressor and allowing him
or her the opportunity to furnish this
type of evidence or advise VA of
potential sources of such evidence. VA
may submit any evidence that it receives
to an appropriate medical or mental
health professional for an opinion as to
whether it indicates that a personal
assault occurred.

67 Fed. Reg. 10330, 10332 (Mar. 7, 2002) (to be codified at
38 C.F.R. � 3.304(f)).  When regulations are changed during
the course of the veteran's appeal, the criteria that are to
the advantage of the veteran should be applied.  Karnas v.
Derwinski, 1 Vet. App. 308 (1991).

In Patton v. West, 12 Vet. App. 272, 278 (1999), the United
States Court of Appeals for Veterans Claims (the Court)
pointed out that there are special evidentiary procedures for
PTSD claims based on personal assault contained in VA
ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February
20, 1996), and former M21-1, Part III, para. 7.46(c)(2)
(October 11, 1995).  In personal assault cases, more
particularized requirements are established regarding the
development of "alternative sources" of information as
service records "may be devoid of evidence because many
victims of personal assault, especially sexual assault and
domestic violence, do not file official reports either with
military or civilian authorities."  VA ADJUDICATION
PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5).

Under the old and new versions of 38 C.F.R. � 3.304(f),
service connection for PTSD requires a current diagnosis of
that disorder in accordance with DSM-IV, adequate evidence of
an inservice stressor, and credible supporting evidence
linking the stressor to service.

PTSD has been diagnosed on a number of occasions in this
case.  Those diagnoses are presumed to be in accordance with
DSM-IV.  Cohen v. Brown, 10 Vet App 128 (1997).  Although the
veteran clearly had significant trauma prior to service, the
current diagnoses have been attributed to inservice
stressors.  This evidence tends to link the current diagnosis
of PTSD to inservice stressors.  See Hodges v. West, 13 Vet.
App. 287 (2000).

The veteran attributes her PTSD to persistent sexual
harassment and gender discrimination in service.  The
remaining question is whether there is credible supporting
evidence of the claimed stressors.

The service medical records document that she felt harassed
during service.  They also document that she sought
counseling and that she was encouraged to seek counseling
because of her impact on morale.  This pattern of conduct
appears to represent a behavioral change.

Behavioral changes are also demonstrated by the evidence that
the veteran changed her eating habits and gained 15 pounds in
a short period in early 1975.  The evidence of behavior
changes provides credible supporting evidence of the claimed
stressors.  As noted above, a VA physician has rendered a
diagnosis of PTSD related to the claimed in-service
stressors.  The evidence shows symptoms of depression,
flashbacks, intrusive thoughts, shame, anger, uncontrollable
crying spells, and uncontrollable rage.

Having considered all the evidence, the Board finds that it
is at least in equipoise.  Under the circumstances, the
veteran prevails as to her claim for service connection for
PTSD with application of the benefit of the doubt in her
favor.  38 U.S.C.A. � 5107 (West Supp. 2001).

						(CONTINUED ON NEXT PAGE)

ORDER

Service connection for PTSD is granted.

	Mark D. Hindin
	Member, Board of Veterans' Appeals

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

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


judge_norm: MARK F HALSEY

text: Entitlement to a temporary total rating for a period of convalescence pursuant to 38 C.F.R. § 4.30 following a November 1989 bilateral lateral fusion of L5-S1 is denied.

text:
Citation Nr: 0206000
Decision Date: 06/06/02    Archive Date: 06/13/02

DOCKET NO.  98-19 173	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a temporary total rating for a period of
convalescence pursuant to 38 C.F.R. � 4.30 following surgical
fusion of L5-S1 in November 1989.

(The issues of entitlement to an increased rating for chronic
low back strain and entitlement to an increased rating for an
upper dorsal spine and left shoulder strain and contusion
will be addressed in a later decision by the Board of
Veterans' Appeals (Board).)

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

A. Masterson, Associate Counsel

INTRODUCTION

The veteran had active military service from January 1973 to
March 1974.

This matter comes before the Board on appeal from a November
1995 rating decision by the VA RO in Detroit, Michigan, that
denied entitlement to a temporary total rating for
convalescence pursuant to 38 C.F.R. � 4.30 following a
November 1989 bilateral lateral fusion of L5-S1.  The Board
notes that the veteran's claims file was subsequently
transferred to the VA RO in St. Paul, Minnesota and to the VA
RO in Milwaukee, Wisconsin, before it was returned to the VA
RO in Detroit, Michigan.  These transfers were required
because of changes in the veteran's location.

The Board also notes that, in June 1998, the veteran withdrew
an earlier request for a hearing before the Board.

The Board is undertaking additional development on the issues
of entitlement to an increased rating for chronic low back
strain and entitlement to an increased rating for an upper
dorsal spine and left shoulder strain and contusion, pursuant
to the authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan.
23, 2002) (to be codified at 38 C.F.R. � 19.9(a)(2)).  When
the development is completed, the Board will provide notice
of the development as required by Rule of Practice 903.  67
Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at
38 C.F.R. � 20.903).  After giving the notice and reviewing
any response by the veteran, the Board will prepare a
separate decision addressing these issues.

FINDING OF FACT

Surgical treatment in November 1989 was not for a service-
connected disability.

CONCLUSION OF LAW

The criteria for entitlement to a temporary total rating for
convalescence following bilateral lateral fusion of L5-S1 in
November 1989 are not met.  38 C.F.R. � 4.30 (2001).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran argues that he is entitled to a temporary total
rating for a period of convalescence after his November 1989
bilateral lateral fusion of L5-S1.

A total disability rating (100 percent) will be assigned if
treatment of a service-connected disability resulted in:  (1)
surgery necessitating at least one month of convalescence;
(2) surgery with severe postoperative residuals such as
incompletely healed surgical wounds, stumps of recent
amputations, therapeutic immobilization of one major joint or
more, application of a body cast, or the necessity for house
confinement, or the necessity for continued use of a
wheelchair or crutches (regular weight-bearing prohibited);
(3) immobilization by cast, without surgery, of one major
joint or more.  38 C.F.R. � 4.30(a) (2001).

The pertinent evidence of record includes a private hospital
report received by the RO in Waco, Texas, in January 1995.
It indicates that the veteran was diagnosed with
spondylolisthesis at L5-S1, and that a bilateral lateral
fusion was performed in November 1989.  He was put in a body
cast shortly thereafter.

This case turns on whether the veteran's convalescence was
due to a service-connected disability.  The evidence of
record is clear that the November 1989 fusion was performed
because of spondylolisthesis at L5-S1.  An April 1998 rating
decision by the VA RO in St. Paul, Minnesota, denied service
connection for post-operative spondylolisthesis at L5-S1.
This decision became final because the RO notified the
veteran of the decision by letter dated in April 1998, and he
did not appeal.  38 C.F.R. �� 20.200, 20.201, 20.302(a)
(2001).

Previous determinations that are final and binding, including
decisions of service connection, will be accepted as correct
in the absence of clear and unmistakable error.  38 C.F.R.
� 3.105(a) (2001).  In the veteran's case, he has not alleged
that clear and unmistakable error exists in the April 1998
rating decision.  Therefore,  there is no challenge to the
April 1998 rating decision that denied entitlement to service
connection for spondylolisthesis.

As such, and because service connection is not in effect for
spondylolisthesis at L5-S1, a temporary total rating based on
treatment for spondylolisthesis requiring convalescence is
not available and the appeal on this issue must be denied.
In short, because the regulation requires that treatment be
for service-connected disability, there is no legal basis
upon which the benefit can be granted.  Sabonis v. Brown,
6 Vet. App. 426, 430 (1994).

In deciding this case, the Board has considered the
applicability of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096, et seq. (2000)
(codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2001)), which became effective during
the pendency of this appeal.  This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
and not yet final as of that date.  38 U.S.C.A. � 5107 note
(West Supp. 2001).  The new law contains revised notice
provisions, and additional requirements pertaining to VA's
duty to assist.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West
Supp. 2001).

It is the Board's conclusion that the new law does not
preclude the Board from proceeding to an adjudication of the
veteran's claim.  This is so because the requirements of the
new law have been satisfied.  By the statement of the case
and the supplemental statement of the case, the RO has
notified the veteran of the information and evidence
necessary to substantiate his claim. Throughout the appeal,
the veteran was given the opportunity to provide argument
and/or evidence concerning the issue on appeal.  As such, the
record does not suggest that further evidentiary development
was required of the RO.  Consequently, inasmuch as VA has
fulfilled its duties to notify and assist in this case,
further action under the new law would serve no useful
purpose except to delay adjudication of the veteran's claim.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis, 6 Vet. App. at 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the veteran are to be avoided).

ORDER

Entitlement to a temporary total rating for a period of
convalescence pursuant to 38 C.F.R. � 4.30 following a
November 1989 bilateral lateral fusion of L5-S1 is denied.

	MARK F. HALSEY
	Member, Board of Veterans' Appeals

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

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


judge_norm: JEFF MARTIN

text:
Citation Nr: 0207000
Decision Date: 06/27/02    Archive Date: 07/03/02

DOCKET NO.  99-24 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

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

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Michael Martin, Counsel

INTRODUCTION

The veteran had active service from January 1942 to November
1945.  He died in March 1998.  The appellant is his surviving
spouse.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of January 1999 by the
Department of Veterans Affairs (VA), Regional Office (RO) in
Nashville, Tennessee.  The decision denied service connection
for the cause of the veteran's death.

The Board remanded the case for additional development in
January 2001.  The requested development has since been
completed to the extent possible, and the case is now before
the Board for further appellate review.

FINDINGS OF FACT

1.  All evidence necessary for equitable resolution of the
issue on appeal has been obtained.

2.  During his lifetime, the veteran established service
connection for an injury to Muscle Group VI, right, rated as
10 percent disabling; an injury to Muscle Group VII, right,
rated as 10 percent disabling; and epidermophytosis, rated as
noncompensably disabling.

3.  The veteran died on March [redacted], 1998, at the age of 86
years, due to an acute rupture of a thoracic aneurysm due to
or as a consequence of essential hypertension.

4.  A cardiovascular disorder was not present during service
or manifested within one year after service.

5.  The death was not proximately due to or the result of a
service-connected disability.

CONCLUSION OF LAW

A service-connected disability did not cause or contribute
substantially or materially to cause the veteran's death.
38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1131, 1137, 1310, 5107
(West 1991 & Supp. 2001); 38 C.F.R. �� 3.307, 3.309, 3.310,
3.311, 3.312 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

During the pendency of this appeal, on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The Act is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date.  38 U.S.C.A.
� 5107 (West Supp. 2001).  The new law eliminates the concept
of a well-grounded claim, and redefines the obligations of
the VA with respect to the duty to assist claimants in the
development of their claims.  First, the VA has a duty to
notify the appellant and representative, if represented, of
any information and evidence needed to substantiate and
complete a claim.  38 U.S.C.A. �� 5102 and 5103 (West Supp.
2001).  Second, the VA has a duty to assist the appellant in
obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. � 5103A (West Supp. 2001).

The VA has promulgated revised regulations to implement these
changes in the law.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R �� 3.102, 3.156(a),
3.159 and 3.326(a)).  The intended effect of the new
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits, or who
attempts to reopen a previously denied claim.

The Board finds that the VA's duties under the law and
recently revised implementing regulations have been
fulfilled.  The appellant was provided adequate notice as to
the evidence needed to substantiate her claim.  The Board
concludes the discussions in the rating decision, the
statement of the case (SOC), the supplemental statement of
the case (SSOC), and letters sent to the appellant informed
her of the information and evidence needed to substantiate
the claim and complied with the VA's notification
requirements.  The RO also supplied the appellant with the
applicable regulations in the SOC and SSOC.  The basic
elements for establishing service connection for the cause of
death have remained unchanged despite the change in the law
with respect to duty to assist and notification requirements.
The VA has no outstanding duty to inform the appellant that
any additional information or evidence is needed.

The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained.  The RO made appropriate efforts to attempt to
obtain all relevant evidence.  The evidence includes the
veteran's service medical records, and a copy of his death
certificate.  The Board remanded the case in January 2001 for
the purpose of obtaining treatment records for the two years
preceding the veteran's death; however, such records could
not be obtained as the appellant did not return authorization
forms which were needed in order to obtain such records.  The
appellant has declined the opportunity to have a hearing.
She also indicated in a signed statement of May 2002 that she
did not plan to submit any additional evidence.  For the
foregoing reasons, the Board concludes that all reasonable
efforts were made by the VA to obtain evidence necessary to
substantiate the claim.  The Board finds that the evidence of
record provides sufficient information to adequately evaluate
the claim.  Therefore, no further assistance to the appellant
with the development of evidence is required.

In the circumstances of this case, a remand to have the RO
take additional action under the new implementing regulations
would serve no useful purpose.  See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran are to be avoided).  The VA
has satisfied its obligation to notify and assist the
claimant in this case.  Further development and further
expending of the VA's resources are not warranted.  Taking
these factors into consideration, there is no prejudice to
the claimant in proceeding to consider the claim on the
merits.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

The appellant contends that the RO made a mistake by denying
service connection for the cause of the veteran's death.  She
asserts that the pain from his service-connected muscle
injuries caused him to have high blood pressure which in turn
contributed to his death.

The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such a disability was either the principal
or contributory cause of death.  See 38 U.S.C.A. � 1310 (West
1991 & Supp. 2001); 38 C.F.R. � 3.312 (2001).  Service
connection may be granted for disability due to disease or
injury incurred in or aggravated by service.  See 38 U.S.C.A.
�� 1110, 1131 (West 1991 & Supp. 2001).  If a chronic
disorder such as cardiovascular disease is manifest to a
compensable degree within one year after separation from
service, the disorder may be presumed to have been incurred
in service.  See 38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West
1991 &  Supp. 2001); 38 C.F.R. �� 3.307, 3.309 (2001).
Service connection may also be granted for disability shown
to be proximately due to or the result of a service-connected
disorder.  See 38 C.F.R. � 3.310(a) (2001).

During his lifetime, the veteran established service
connection for an injury to Muscle Group VI, right, rated as
10 percent disabling; an injury to Muscle Group VII, right,
rated as 10 percent disabling; and epidermophytosis, rated as
noncompensably disabling.

The veteran's death certificate shows that the veteran died
on March [redacted], 1998, at the age of 86 years, due to an acute
rupture of a thoracic aneurysm due to or as a consequence of
essential hypertension.  The death certificate contains no
indication that the cause of death was related to service.

The veteran's available service medical records show that
cardiovascular disease was not present during service.  The
report of an examination conducted in November 1945 for the
purpose of his separation from service shows that his blood
pressure was within normal limits at 122/64.  His
cardiovascular system was described as being normal.  A chest
X-ray was also normal.

There is also no evidence that any type of cardiovascular
disease was manifested within one year after separation from
service.  In fact, the report of a disability evaluation
examination conducted by the VA several years after service
in February 1948 shows that his blood pressure was normal at
128/78.

The earliest medical evidence pertaining to the presence of a
cardiovascular disorder is the veteran's death certificate
which is dated over 52 years after his separation from
service.

The Board finds no basis for concluding that the service-
connected disabilities played a role in the veteran's death.
The service-connected disabilities are not mentioned on the
veteran's death certificate as would usually be expected if
they had played a significant role in his death.

In summary, the evidence shows that the cardiovascular
disease which resulted in the veteran's death was not present
during service or manifested within one year after service.
Moreover, the weight of the medical evidence shows that there
was no relationship between the service-connected disorders
and the veteran's death.  Accordingly, the Board concludes
that a service-connected disability did not cause or
contribute substantially or materially to cause the veteran's
death.

ORDER

Service connection for the cause of the veteran's death is
denied.

	JEFF MARTIN
	Member, Board of Veterans' Appeals

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

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


condition: psychiatric

text:
Citation Nr: 0208000
Decision Date: 07/17/02    Archive Date: 07/19/02

DOCKET NO.  99-03 938	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

H. Roberts, Counsel

INTRODUCTION

The veteran served on active duty from April 1944 to December
1944.

This appeal arises before the Board of Veterans' Appeals
(Board) from a May 1988 rating decision of the Winston-Salem,
North Carolina, Regional Office (RO) of the Department of
Veterans Affairs (VA), which found that new and material
evidence had not been submitted to reopen a claim of
entitlement to service connection for an acquired psychiatric
disorder.

A November 2000 Board decision reopened the veteran's claim,
finding that new and material evidence had been submitted.  A
remand attached to that decision requested development of the
evidence.  That development has been completed and this claim
is again before the Board.

FINDINGS OF FACT

1.  In connection with his reopened claim the veteran was
scheduled for an October 2001 VA examination, but failed to
report without good cause.

3.  The October 2001 examination was necessary to establish
the veteran's entitlement to service connection for a
psychiatric disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a
psychiatric disability are not met.  38 U.S.C.A. �� 1110,
1111, 1153, 5103A (West 1991 & Supp. 2002); 38 C.F.R.
�� 3.102, 3.303, 3.304, 3.306, 3.310, 3.655 (2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA) was enacted on
November 9, 2000.  Among other things, the VCAA eliminated
the well-grounded-claim requirement and modified the
Secretary's duties to notify and assist claimants.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West
Supp. 2001); see Holliday v. Principi, 14 Vet. App. 280, 284-
86 (2001) (holding all sections of VCAA are retroactive).

The United States Court of Appeals for Veterans Claims
(Court) subsequently held that the requirements of the VCAA
were met where the appellant was fully notified and aware of
the type of evidence required to substantiate his claims and
that no additional assistance would aid in further developing
his claims.  Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).  When there is extensive factual development in a
case, and there is no reasonable possibility that any further
assistance would aid the appellant in substantiating his
claim, VCAA does not apply.  Wensch v. Principi, 15 Vet App
362 (2001); Dela Cruz; see also 38 U.S.C.A. � 5103A(a)(2)
(Secretary not required to provide assistance "if no
reasonable possibility exists that such assistance would aid
in substantiating the claim").

There is no issue as to substantial completeness of the
appellant's application for benefits.  See 38 U.S.C.A.
� 5102.  There are no outstanding records that are pertinent
to the claim.  See 38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.
The veteran and his representative have been advised of the
evidence necessary to substantiate the claim, by means of the
statement of the case, the supplemental statements of the
case, the Board decision and remand, and the rating decisions
issued regarding the claim.  He has also been furnished with
a February 2002 supplemental statement of the case notifying
him of the pertinent provisions of the VCAA.  Three VA
facilities were asked whether they possessed any further
records of treatment for the veteran and all responded in the
negative.

Therefore, the Board finds that the statutory and regulatory
requirements with regard to notice and development of the
claim have been satisfied.  VA has obtained all evidence that
the veteran or appellant has indicated is pertinent to the
claim and has satisfied the duty to assist.  See 38 U.S.C.A.
� 5103A.

To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620-32 (Aug. 29,
2001) (to be codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a).  The regulations as they apply to this case were
not meant to confer any rights in addition to those provided
by the VCAA.  66 Fed. Reg. 45,629 (Aug. 29, 2001).

The veteran contends that a psychiatric disorder was incurred
in or aggravated by service and that service connection
therefor is warranted.

Pursuant to a November 2000 Board remand, the veteran was
scheduled for a VA examination on October 31, 2001.  The
veteran failed to report for that examination.

When entitlement or continued entitlement to a benefit cannot
be established or confirmed without a current VA examination
or reexamination and a claimant, without good cause, fails to
report for such examination, or reexamination, action shall
be taken in accordance with paragraph (b) or (c) of 38 C.F.R.
� 3.655 as appropriate.  Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc.  For
purposes of this section, the terms examination and
reexamination include periods of hospital observation when
required by VA.  38 C.F.R. � 3.655(a).

When a claimant fails to report for an examination scheduled
in conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record.  When the
examination was scheduled in conjunction with any other
original claim, a reopened claim for a benefit that was
previously disallowed, or a claim for increase, the claim
shall be denied.  38 C.F.R. � 3.655(b).

The veteran's claim for service connection for an acquired
psychiatric disorder has been previously denied and was
reopened by a November 2000 Board decision that found that
new and material evidence had been submitted to reopen the
claim.  Therefore, the claim is considered to be a reopened
claim.  The veteran has reported through his representative
that he is "physically incapable" of reporting for an
examination.  This unsubstantiated and vague assertion
without more does not constitute good cause for failing to
report.  The veteran has not reported any of the details of
his physical incapacity, and has responded to VA requests for
treatment records by saying that VA has all relevant records.
Yet, if he were so disabled as to be incapable of reporting,
it would be expected that there would be medical records
documenting this fact.

Accordingly, the Board finds that the record does not
demonstrate good cause for the veteran's failure to report.
The scheduled examination was necessary because the Board
needed a medical opinion as to whether the psychiatric
disability pre-existed service and, if so, whether the pre-
existing disability underwent a permanent increase in
severity during service.  Thus, pursuant to 38 C.F.R.
� 3.655, his claim must be denied for failure to report to
the scheduled VA examination without which, entitlement to
the benefit sought cannot be established.

The Board's remand served to notify the veteran of the need
for the examination in order to substantiate his claim.  The
RO advised him of the provisions of 38 C.F.R. � 3.655, and of
the adverse impact a failure to report would have on his
claim.  Under these circumstances, the Board is required to
deny the veteran's claim.

ORDER

Entitlement to service connection for an acquired psychiatric
disorder is denied.

	Mark D. Hindin
	Member, Board of Veterans' Appeals

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

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


judge_norm: JACQUELINE E MONROE

text:
Citation Nr: 0209000
Decision Date: 08/02/02    Archive Date: 08/12/02

DOCKET NO.  99-09 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York

THE ISSUE

Whether new and material evidence has been presented to
reopen a claim for service connection for an acquired
psychiatric disorder.

ATTORNEY FOR THE BOARD

Michael F. Bradican, Counsel

INTRODUCTION

The veteran had active military service from May 1951 to May
1953.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1990 decision by the
Buffalo, New York, Department of Veterans Affairs (VA)
Regional Office (RO).  A notice of disagreement was received
in September 1990.  A statement of the case was issued in
November 1990.  The veteran perfected his appeal to the Board
of Veterans Appeals (Board) in August 1991.

This claim first came before the Board in October 2000.  It
was remanded at that time because the file contained
pertinent evidence that had not been properly addressed by a
supplemental statement of the case.

FINDINGS OF FACT

1.  In a September 1976 rating decision, the RO determined
that the veteran had not submitted new and material evidence
to reopen a claim for service connection for an acquired
psychiatric disorder.  Although the RO notified the veteran
of the September 1976 decision that same month, he did not
appeal the decision.

2.  The evidence associated with the claims file since the
September 1976 denial of the petition to reopen the claim for
service connection for an acquired psychiatric disorder is
either not new or is not, by itself or in connection with
evidence previously assembled, so significant that it must be
considered in order to fairly decide the merits of the claim.

CONCLUSIONS OF LAW

1.  The RO's unappealed September 1976 denial of the petition
to reopen the claim for service connection for an acquired
psychiatric disorder, is final.  38 U.S.C.A. � 7105 (West
1991); 38 C.F.R. �� 3.104(a), 20.302, 20.1103 (2001).

2.  The evidence associated with the claims file since the
September 1976 decision is not new and material; thus, the
requirements to reopen the claim of entitlement to service
connection for an acquired psychiatric disorder have not been
met.  38 U.S.C.A. � 5108 (West 1991); 38 C.F.R. � 3.156
(2001).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board notes that during the pendency of the
veteran's appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed
into law.  This liberalizing law is applicable to this
appeal.  See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991).  To implement the provisions of the law, the VA
promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified at 38 C.F.R. �� 3.102,
3.156(a), 3.159, 3.326(a)).  The Act and implementing
regulations essentially eliminate the concept of the well-
grounded claim.  38 U.S.C.A. � 5107(a) (West Supp. 2001); 66
Fed. Reg. 45,620 (Aug. 29, 2001 (to be codified as amended at
38 C.F.R. � 3.102).  They also include an enhanced duty on
the part of VA to notify a claimant of the information and
evidence needed to substantiate a claim.  38 U.S.C.A. � 5103
(West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified at 38 C.F.R. � 3.159(b)).  In addition, they define
the obligation of VA with respect to its duty to assist the
claimant in obtaining evidence.  38 U.S.C.A. � 5103A (West
Supp 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified at 38 C.F.R. � 3.159(c)).

For the reasons explained in more detail, below, the Board
finds that the passage of the VCAA and implementing
regulations does not prevent the Board from rendering a
decision on the claims on appeal at this time, and that all
notification and development action needed to render a fair
decision on each of the claims on appeal has been
accomplished.

The veteran's claim for service connection for an acquired
psychiatric disorder has previously been denied.  A rating
decision of July 1953 denied entitlement to service
connection for a neuropsychiatric disorder.  This
determination was upheld by a Board decision dated in
December 1953.  In May 1969 and September 1976, the RO
determined that new and material evidence had not been
received with which to reopen the veteran's previously denied
claim for service connection for a neuropsychiatric disorder.
The veteran was notified of both denials (in June 1969 and
later in September 1976), but did not appeal either denial.

This appeal arises from a September 1990 decision that
determined that new and material evidence had not been
received with which to reopen the veteran's previously denied
claim of entitlement to service connection for a
neuropsychiatric disorder.  A notice of disagreement was
received in September 1990, and a statement of the case was
issued in November 1990.  A statement from the veteran
received at the RO in August 1991 contained language ("I want
my case to go to the Board of Veterans Appeals in
Washington") that the Board has construed as a substantive
appeal.  The Board also observes that in a February 1998
statement, the veteran indicated that he wanted "this claim
for psychiatric stopped immediately."  However, a review of
subsequent correspondence from the veteran and his
representative indicates that the veteran was essentially
expressing his displeasure with the characterization of the
issue on appeal, and was not expressing an intent to have the
issue withdrawn.

Because the veteran did not appeal the September 1976 RO
decision (the most recent denial prior to the claim on
appeal), that decision is final based on the evidence then of
record.  See 38 U.S.C.A. � 7105; 38 C.F.R. �� 3.104(a),
20.302, 20.1103.  However, pertinent law and regulation
provides that if new and material evidence has been presented
or secured with respect to a claim which has been disallowed,
the claim may be reopened and the former disposition
reviewed.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

Pursuant to 38 C.F.R. � 3.156(a), new and material evidence
means evidence not previously submitted to agency decision-
makers which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.  [Parenthetically, the Board
notes that the regulations implementing the VCAA includes a
revision of 38 C.F.R. � 3.156(a).  However, the revised
version of 38 C.F.R. � 3.156(a) is only applicable to claims
filed on or after August 29, 2001.  See 66 Fed. Reg. 45620-
45632 (August 29, 2001).  Hence, the Board will apply the
version of 3.156(a) in effect at the time of the 1997 denial
(culminating in the current appeal); that version appears in
the 2001 edition of Title 38 of the Code of Federal
Regulations.].

Thus, if the newly presented evidence is not "new," the
claim to reopen fails on that basis and no further analysis
of the evidence is required.  Similarly, if "new" evidence
is not "material," in the sense that, when considered by
itself or in connection with evidence previously assembled,
it is not so significant that it must be considered in order
to fairly decide the merits of the claim, the claim to reopen
fails on that basis and the inquiry ends.  If the evidence is
determined to be both new and material, VA reopens the claim
and evaluates the merits after ensuring that the duty to
assist has been fulfilled.  38 C.F.R. � 3.156.

The provisions of 38 U.S.C.A. � 5108 require a review of all
evidence submitted by a claimant since the previously
disallowed claim in order to determine whether a claim must
be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3
(1996).  Furthermore, for purposes of the "new and
material" analysis, the credibility of the evidence is
presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513
(1992).

As regards the veteran's claim for service connection for an
acquired psychiatric disorder, the evidence of record at the
time of the September 1976 rating decision included the
veteran's service medical records, his testimony at a
personal hearing conducted at the RO in September 1953 and
various statements submitted by him, and post-service VA
records.  This evidence reflects that the veteran was
diagnosed with emotional instability during his active
military service.  In a September 1953 decision, the Board
determined that no neuropsychiatric condition was found at
the time of examination for separation, and that there was no
evidence of a superimposed psychoneurosis or psychosis
existing during the veteran's period of active service.  It
was further noted that the diagnosis of emotional instability
made during service was in the nature of a constitutional or
developmental abnormality and was not a disease or injury for
which service connection could be granted.

The evidence associated with the claims file since the
September 1976 rating decision includes VA and private
medical records, and statements and contentions of the
veteran.  A statement from a private psychiatrist, dated in
April 1980, notes that in the examiner's opinion the veteran
is mentally fit to work as a deputy sheriff and has no
existing mental illness.  Outpatient treatment records, dated
from September 1989 to May 2001 show early treatment for
chronic mild anxiety, however, the most recent reports do not
show a diagnosis of an acquired psychiatric disorder or
"nervous condition".  In conjunction with a claim to
reopen, the veteran was scheduled to report for a VA mental
disorders examination in June 1990.  He did not report for
examination.  In March 1996 the veteran underwent a VA mental
disorders examination.  He gave a history of being
hospitalized for 30 days while on active duty for a "nervous
breakdown".  He complained of being nervous all the time.
Mental status examination showed no evidence of psychotic
features or thought disorder except for a mild paranoid
ideation.  He was alert and oriented.  Diagnoses included
generalized anxiety disorder, dysthymia and rule out mixed
personality disorder.

The additional medical evidence is, for the most part, "new"
in the sense that it was not previously considered by agency
decision makers.  However, none of this evidence is
"material" for purposes of reopening the claim for service
connection for an acquired psychiatric disorder.  The medical
records reflect some instances of treatment for mild anxiety
and a diagnosis of generalized anxiety and dysthymia,
however, this evidence includes nothing to medically indicate
that the an acquired psychiatric disorder was, in fact,
incurred in or aggravated during service.  The Board notes
that the record, in fact, contains a statement by a private
psychiatrist, dated in 1980, to the effect that the veteran
had no mental illness at that time (many years after his
military service and ten years prior to his attempt to reopen
his claim).

As such, this evidence simply is not probative of the
question of whether an acquired psychiatric disorder was
incurred or aggravated in service, the pivotal issue
underlying the veteran's claim for service connection.  The
Board finds that the additional medical evidence does not
bear directly and substantially upon the specific matter
under consideration (whether the criteria for service
connection for an acquired psychiatric disorder are met),
and, thus, is not so significant that it must be considered
to fairly decide the merits of the claim.

As regards the veteran's testimony and statements made in
connection with the petition to reopen, in which he asserts a
relationship between current psychiatric problems and
service, the Board notes that these assertions are almost
identical to the statements he made prior to the September
1976 decision.  As this evidence appears to be duplicative or
cumulative of other evidence (statements) previously
considered, it is not, by definition, "new."  The Board
would also point out that, as a layperson, the veteran is not
competent to provide a probative opinion on a medical matter,
such as the etiology of a disability.  See Bostain v. West ,
11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2
Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of
opining on matters requiring medical knowledge").  Hence,
where, as here, resolution of the issue on appeal turns on a
medical matter, unsupported lay statements, even if new,
cannot serve as a predicate to reopen a previously disallowed
claim.  See Moray v. Brown, 5 Vet. App. 211, 214 (1993).

For all the foregoing reasons, the Board finds, after careful
review of the evidence previously of record, and the laws and
regulations governing reopening of previously disallowed
claim, that the evidence associated with the claims file
since the last prior final denial does not constitute new and
material evidence to reopen the claim of entitlement to
service connection for a nervous condition.  As such, the
September 1976 RO determination remains final.

In reaching this decision, the Board has considered the
applicability of the Veterans Claims Assistance Act of 2000,
which, as indicated above, was enacted during the pendency of
the appeal.  The Board points out, however, that the VCAA
expressly provides that nothing in the Act "shall be
construed to require [VA] to reopen a claim that has been
disallowed except when new and material evidence is presented
or secured, as described in section 5108 of this title."
Pub. L. No. 106-475, � 3(a), 114 Stat. 2096 (codified at 38
U.S.C. � 5103A(f) (West Supp. 2001)).  Because the veteran
has not presented new and material evidence to reopen his
claim, it does not appear that the duty to assist provisions
of the Act are applicable in the instant appeal.  Moreover,
as indicated above, because the petition to reopen was filed
prior to August 29, 2001, any duties set forth in the revised
version of 38 C.F.R. � 3.156(a), promulgated pursuant to the
Act, also are not applicable in this appeal.

In any event, the Board has determined that that all
notification and development action needed to render a fair
decision on each of the issues on appeal has been
accomplished.  In this regard, the Board notes that the
veteran and his representative have been put on notice as to
the bases for the denial of each claim, and, hence, what is
needed to support the application to reopen each claim on
appeal.  They also have been afforded various opportunities
to present evidence and argument in support of the petition
to reopen.  The Board is aware of no circumstances in this
matter that would put the VA on notice of the existence of
any additional relevant evidence that, if obtained, would
provide a basis to reopen the claim on appeal.  See McKnight
v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997); Robinette v.
Brown, 8 Vet. App. 69, 77-78 (1995).

As the veteran has not fulfilled his threshold burden of
submitting new and material evidence to reopen the finally
disallowed claim, the benefit-of-the-doubt doctrine is not
applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467
(1993).

ORDER

In the absence of new and material evidence, the application
to reopen the claim of entitlement to service connection for
an acquired psychiatric is denied.

	JACQUELINE E. MONROE
	Member, Board of Veterans' Appeals

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

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