judge_norm: M W GREENSTREET

text:
Citation NR: 9723000
Decision Date: 06/26/97		Archive Date: 07/02/97
DOCKET NO.  94-35 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder, including posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Mississippi Division of
Veterans Affairs

ATTORNEY FOR THE BOARD

C. S. Freret, Counsel

INTRODUCTION

The appellant had active military service from June 1967 to
June 1971 and from December 1990 to May 1991.  The record
reflects that he had more than 19 years of inactive duty in
between his periods of active duty.

This appeal comes before the Board of Veterans' Appeals
(Board) from a rating decision by the Department of Veterans
Affairs (VA) Jackson, Mississippi, Regional Office (RO).  The
case was remanded by the Board to the RO in March 1996 for
additional development.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant asserts that he has PTSD that is related to his
combat experiences in Vietnam, and that the disorder produces
nightmares, flashbacks, and night sweats that are related to
combat events to which he was exposed in Vietnam.

DECISION OF THE BOARD

After reviewing the relevant evidence in this matter in
accordance with 38 U.S.C.A. � 7104, and for the following
reasons and bases, the Board has determined that the
preponderance of the evidence is against the appellant�s
claim for service connection for an acquired psychiatric
disorder, including PTSD.

FINDINGS OF FACT

1.  The appellant had active military service from June 1967
to June 1971 and from December 1990 to May 1991.

2.  An acquired psychiatric disorder is not shown to have
been present during the appellant�s first period of active
military service.
3.  The appellant�s schizophrenia is shown to have been
initially manifested many years after his first period of
active military service.

4.  The appellant�s schizophrenia is not shown to have
undergone an increase in severity during his second period of
active military service.

5.  The appellant is not shown to have PTSD.

CONCLUSION OF LAW

An acquired psychiatric disorder, including PTSD, was not
incurred in or aggravated by wartime military service.
38 U.S.C.A. � 1110, 1153, 5107 (West 1991); 38 C.F.R.
�� 3.303, 3.306 (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
military service.  38 U.S.C.A. � 1110.  Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran�s current disability was
incurred in service.  38 C.F.R. � 3.303(d).

A preexisting injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease.  38 U.S.C.A. � 1153; 38 C.F.R.
� 3.306(a).

Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
preservice disability underwent an increase in severity
during service.  This includes medical facts and principles
that may be considered to determine whether the increase is
due to the natural progress of the condition.  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.  38
U.S.C.A. � 1153; 38 C.F.R. � 3.306(b).

Service medical records show no complaint or finding of any
psychiatric disorder during the appellant�s first period of
active military service.  The evidence presented in this case
shows that an acquired psychiatric disorder, diagnosed as
chronic schizophrenia, was initially manifested during a
period of private hospitalization from March to April 1984.

Schizophrenia was not noted at the veteran�s entrance into
the second period of service, raising the presumption of
soundness; however, the medical evidence overwhelmingly
demonstrates the onset of schizophrenia prior to that time
and so constitutes clear and unmistakable evidence that
rebuts that presumption. The service medical records from the
second period of service show that, while receiving treatment
for alcohol dependence, he admitted to nightmares and
flashbacks of Vietnam.  Those records show that he reported
having received four months of treatment for PTSD at a VA
medical center in 1976, which �had helped a little bit.�  He
also stated that, while his drinking helped him sleep better,
he would still drink even if he did not have nightmares.
Schizophrenia was not diagnosed.  Based on this evidence, the
Board finds that the preexisting schizophrenia did not
increase in severity during that time.

Because the evidence does not establish that the appellant�s
schizophrenia began during his first period of service or
that it was aggravated by his second period of service, the
Board is unable to identify a basis to grant service
connection for schizophrenia.

Regarding the appellant�s claim that he has PTSD, the Board
finds that he had combat service in Vietnam, as evidenced by
his award of the Navy Achievement Medal with Combat �V� for
participating in over 45 tactical convoys in Vietnam during
which he was often exposed to enemy hostile sniper and mortar
fire, and his receipt of the Combat Action Ribbon.
Accordingly, the Board finds that he was exposed to a
stressor during that time.

The defect in his claim for service connection for PTSD is
that he does not have a clear, unequivocal diagnosis of PTSD,
as required for a finding that the disorder exists.  See
Cohen v. Brown, No. 94-661, U. S. Vet.App. (March 7, 1997).
Although a March 1993 VA hospitalization report, pertaining
to evaluation of the appellant�s complaint of chest pain,
indicates that the appellant was evaluated in Psychiatry, and
that the evaluating psychiatrist�s impression was �probable
PTSD with evolution without psychosis,� the Board does not
find this meets the definition of an clear, unequivocal
diagnosis of PTSD under Cohen.  Nor does the Board find that
a notation on an April 1993 VA outpatient record indicating a
diagnosis of chronic paranoid schizophrenia and PTSD
satisfies this requirement of Cohen.

Rather, the much greater weight of the private and VA medical
evidence shows the appellant�s sole psychiatric disorder to
be schizophrenia.  A July 1984 VA hospitalization report
reveals a diagnosis of paranoid schizophrenia.  Medical
records from B. H. Ellis, M.D., dated from 1984 to 1993 show
diagnoses of chronic paranoid schizophrenia since 1984, with
an indication in a January 1992 medical statement that the
appellant was permanently disabled by chronic paranoid
schizophrenia.  J. E. Morris, Ph.D., indicated in an August
1992 psychological evaluation that the appellant had chronic
undifferentiated schizophrenia.  The diagnosis at a February
1993 VA psychiatric examination was chronic paranoid
schizophrenia, and the examiner addressed the crux of the
matter directly, flatly stating that the appellant did not
satisfy the criteria for a diagnosis of PTSD.  VA outpatient
records dated in December 1995 and January 1996 also diagnose
schizophrenia.

Because the evidence in this case does not demonstrate a
clear, unequivocal diagnosis of PTSD, it does not meet the
first element required by Cohen for service-connection of
PTSD.  Hence, the appellant�s claim that he has PTSD must be
denied.

ORDER

Service connection is denied for an acquired psychiatric
disorder, including PTSD.

	M. W. GREENSTREET
	Member, Board of Veterans' Appeals

The provisions of 38 U.S.C.A. � 7102 permit a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been so assigned.

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


series: legacy

judge_norm: J E DAY

judge_role: Member, Board of Veterans' Appeals

disposition: granted

condition: ptsd

text:
Citation NR: 9724000
Decision Date: 07/11/97		Archive Date: 07/21/97
DOCKET NO.  95-02 126	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

R. E. Smith, Counsel

INTRODUCTION

The veteran had active military service from February 1952 to
November 1953.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a January 1994 rating decision by the
Department of Veterans Affairs (VA) Roanoke, Virginia,
Regional Office (RO) which denied the veteran entitlement to
service connection for PTSD.

At a personal hearing on appeal in February 1995, the veteran
withdrew from appellate review the issue of entitlement to
service connection for a liver disorder which was a subject
of the statement of the case issued to the veteran in October
1994.  His appeal is accordingly so limited.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his PTSD began as a result of
several stressful experiences he had while on active duty in
Korea.  He avers that three of his service comrades, one a
very close friend, were killed within 100 yards of him by an
exploding mortar shell and points out that a noted
psychiatrist has evaluated him and found that he suffers from
PTSD as a result of his wartime service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence, and for the
following reasons and bases, it is the decision of the Board
that the evidence supports the claim for service connection
for PTSD.

FINDINGS OF FACT

1.  The veteran served in Korea during the Korean Conflict
and received, among other awards, the Combat Infantry Badge.

2.  The veteran currently suffers from PTSD which is
attributable to his period of service.

CONCLUSION OF LAW

PTSD was incurred in wartime service.  38 U.S.C.A. �� 1110,
5107 (West 1991); 38 C.F.R. � 3.304(f) (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, we note that we have found that the veteran's
claim is well grounded within the meaning of 38 U.S.C.A.
� 5107(a).  That is, we find that he has presented a claim
which is not inherently implausible.  Further, we are
satisfied that all relevant facts have been properly
developed and the data on file are sufficient for us to
render a fair and equitable determination of the matter at
hand.  Consequently, we find that no further assistance is
required to comply with the duty to assist as mandated by
38 U.S.C.A. � 5107.

Service connection may be granted for disability resulting
from injury or disease incurred in or aggravated by wartime
service.  38 U.S.C.A. � 1110.  Regulations also provide that
service connection may 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.  However, service
connection for PTSD requires medical evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed inservice stressor actually
occurred and a link established by medical evidence between
current symptomatology and the claimed inservice stressor.
If the claimed service stressor is related to combat, service
department evidence that the veteran was awarded the Purple
Heart, Combat Infantryman Badge or similar combat citation
will be accepted, in the absence of evidence to the contrary,
as conclusive evidence of the claimed inservice stressor.
38 C.F.R. � 3.304(f).

The evidence in this case reveals that the veteran served in
Korea during the Korean Conflict.  He received the Combat
Infantry Badge.  Pursuant to 38 C.F.R. � 3.304(f), in the
absence of evidence to the contrary, the Board finds the
existence of a valid inservice stressor.

The veteran filed his claim for service connection for PTSD
in April 1993.

On a VA neuropsychiatric evaluation in November 1993, the
veteran informed his examiner, a VA clinical psychologist,
that he had been drafted into the Army in February 1952,
trained to be an infantryman, and went to Korea in 1952.  He
also reported that he was in Korea for over 11 months.  The
examiner noted that the veteran complained of a poor memory
and was unable or unwilling to talk about most of his
experiences in Korea.  The veteran did relate an event in
April 1953 when three service comrades were killed as a
result of a mortar attack.  The veteran indicated that,
following service, he had an irregular and very limited work
history.  He estimated that he had worked only about a total
of 10 years in the 40 years since his discharge from the
Army.  He attributed this lack of employment to his "medical
problems."  The veteran indicated that he used to think about
Korea every day but he could not remember what his thoughts
were.  He indicated that he tries now not to think about or
remember Korea, but would not say whether or not he succeeded
in this.  He could not think of any current events which
upset him because they reminded him of Korea.  He described
himself as having exaggerated startle responses.  He
indicated that he felt depressed about 80 percent of the time
and has been feeling hopeless and low in self-esteem lately.
He said that he experiences about four nightmares a month but
that he could not remember what they were about.  When asked,
he said that he had flashbacks, but he would not describe
them to the examiner.  He related that he had always been a
social person but that, about 10 years ago, he began to feel
uncomfortable with people and began wanting to be by himself.
He further indicated that he was not receiving any
psychiatric treatment.  On objective examination, the veteran
was found to be appropriately dressed and groomed.  He was
alert, oriented, cooperative and talkative.  His mood was
anxious, depressed and worried.  He appeared tense, restless,
constantly clasped and unclasped his hands and was tearful at
times.  His thoughts were indicated to be poorly organized
and circumstantial but there were no indications of loosening
of associations.  The veteran's expressed fears that people
were trying to poison him, were recorded and noted to border
on the delusional but, overall, the veteran did not appear to
be psychotic.  Insight was partial.  Immediate memory was
intact.  Remote memory was characterized by complaints of
amnesia for most events in Korea.  The veteran's judgment was
somewhat impaired.  The examiner indicated that the personal
history and complaints reported by the veteran were not
clearly supportive of a diagnosis of PTSD.  Undifferentiated
somatoform disorder with hysterical conversion features,
anxiety disorder was the Axis I diagnosis.

In June 1995, the veteran was afforded a VA psychological
evaluation by a private physician, D. W. Bolter, M.D.  On
this examination, the veteran related a multitude of major
emotional symptoms since his experiences on the front lines
in the Korean war.  He noted that he had an extremely erratic
employment history since the war.  He further indicated that
for many years he abused alcohol excessively and eventually
was able to stop drinking after attending AA and avoiding
alcohol.  He indicated further that his longest employment
since military service had been for only three years.  The
veteran reported that he had missed a VA hearing because he
was afraid they would talk about "the war."  The examiner
noted that the veteran avoided all activities that reminded
him of his previous war experiences, including movies, books
and/or anything that might trigger feelings in that area.  It
was noted that the veteran goes to great efforts to avoid
thoughts or feelings associated with his war experiences.
The examiner reported that he suspected that one reason why
the veteran had not received adequate treatment over the
years is the fact that he avoided dealing with the trauma in
a realistic and open manner.  He noted that the veteran
experienced flashbacks of his traumatic experiences and felt
that the flashbacks were a primary reason for him initially
resorting to alcohol abuse.  On mental status examination,
the veteran presented in a very distraught manner.  When his
war experiences were only peripherally dealt with, he became
highly emotional, tearful, and distraught.  The veteran's
mood was depressed.  There was a mild to moderate degree of
psychomotor retardation present.  The veteran's affective
responses were restricted to negative themes.  The veteran
was noted to have minimal insight.  Sensorium functions were
slowed and he had impairment of both attention and
concentration spans.  No psychotic thinking was observed.
The veteran had distinct memory gaps centering around his war
experiences.  The examiner noted that even a casual observer
could recognize that the veteran has significant emotional
problems.  He added that, when the veteran reveals his
history as best he can, it is obvious that he has experienced
severe trauma and has been unable to deal with the trauma
effectively.  Post-traumatic stress disorder was diagnosed.
The examiner commented that the veteran had avoided dealing
with his illness for many years and was still resistant to
some forms of treatment.  The examiner added that the veteran
has suffered from his current condition since he was in the
military service and, at present, continues to meet the
criteria for the diagnosis of PTSD.

At a personal hearing on appeal in February 1995, the veteran
testified that he experiences recurrent anxiety attacks as a
result of his experiences in Korea.  He described his post
service employment history and indicated that he was not able
to function effectively in any of the activities he pursued
following service as a result of his inability to handle
stress.

VA clinical data received in June 1995, included a report of
an October 1994 VA psychological evaluation.  This evaluation
discloses that the veteran reported being troubled by anxiety
during much of his adult life and that he had developed
memory problems during the past year.  When questioned about
his combat experiences, the veteran recalled that the most
stressful experience he had suffered was when he heard that
several of his acquaintances were killed prior to his
departure from Korea.  The veteran also reported being
troubled by nightmares, but his descriptions were too general
to enable the interviewer to relate his nightmares to combat
experiences.  Testing of the veteran on this occasion
suggested that his thought processes were moderately slower
than average for individuals his age.  Testing also suggested
that the veteran experienced a multitude of unusual thoughts,
experiences and sensations which are typically endorsed by
fewer than 10 percent of adults taking the test.  It was
noted that such an extreme response set is difficult to
interpret aside from the fact that the veteran is feeling
extremely stressed and experiences life as chaotic.  It was
noted that, at present, the veteran was reporting a fairly
high level of distress which makes it difficult to generate a
definite statement regarding his typical personality
functioning.  It was further noted that, because the veteran
was unable to identify a specific combat-related traumatic
stressor, no diagnosis of post-traumatic stress disorder
could be made at this time.

On a VA examination in July 1996, the veteran reported that
he had been trained as an infantryman in service and that he
was sent to Korea in 1952.  He could not recall his unit in
Korea although he thought that he might have been in the 40th
or 45th Division.  He was in a motor unit.  When asked about
his stressors in Korea, he replied that he could not remember
them and did not like to talk about them.  He became upset
and talked of walking out on the interview if he was going to
be asked about his war experiences.  He indicated finally
that he was in combat, but the only specific event he
referred to was to say that he saw his best friend killed.
He could not or would not provide any details about this.  He
indicated that he could not recall the date or place where
his best friend was killed.  The veteran indicated that,
following service, he was a nervous wreck and that he would
lose full-time jobs because he could not stand stress.  He
reported that he had been married and divorced three times
and had four children who he said he was real close to.  He
reported exaggerated startle responses and said that he feels
depressed frequently and reported suicidal ideation
occasionally, hopeless feelings, lack of energy and reduced
interest in activities.  He said that he often has nightmares
but he would not or could not give any examples.  He reported
increased irritability and some homicidal thoughts.  On
objective evaluation, the veteran was found to be anxious and
depressed.  He appeared to be very tense and restless and
showed constant hand movements.  He rambled and had memory
problems and displayed an absence of normal smiling and
laughing.  Remote memory seemed poor because he was vague
about past events and said he that did not and he could not
remember them.  His concentration was adequate.  Fund of
general information and abstract thinking were intact.
Judgment was poor.  The examiner indicated that the veteran
continued to be quite vague and unable or unwilling to
describe events when interviewed.  He further indicated that
this interview was much like his interview with the veteran
in November 1993.  The examiner indicated that the limited
information the veteran gives does not clearly indicate a
post-traumatic stress disorder.  Undifferentiated somatoform
disorder with hysterical conversion features, and anxiety
disorder not otherwise specified, were the Axis I diagnoses.

At his February 1995 hearing, the veteran testified that,
since leaving service, he has had adjustment difficulties
which he attributes to an inability to handle stress as a
result of his experiences in Korea.  He reported flashbacks
of these experiences and problems with nightmares.  A private
physician, who examined the veteran in January 1995, noted
the veteran had recurrent and intrusive distressing
recollections of his war experiences which he refused to talk
about.  He further observed that the veteran went to great
lengths to avoid confronting his war experiences.  The
veteran has a requisite inservice stressor for PTSD.  PTSD
was clearly diagnosed by the veteran's private examiner in
January 1995.  Although this diagnosis has not been confirmed
on VA psychiatric examination provided to the veteran, it
appears that this failure to diagnose the disorder results
primarily from the veteran's reluctance to fully discuss his
wartime service.  While this is unfortunate in that it is not
diagnostically helpful, the veteran nevertheless has the
award of the Combat Infantry Badge which provides conclusive
evidence of an inservice stressor such as to support a
diagnosis of PTSD.  Furthermore, PTSD has been clearly
diagnosed.  We find, therefore, on giving the benefit of the
doubt to the veteran, that service connection for PTSD is
warranted.

ORDER

Service connection for post-traumatic stress disorder is
granted.

	J. E. DAY
	Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: ROBERT E O’BRIEN

disposition: denied

condition: skin

text:
Citation NR: 9725000
Decision Date: 07/18/97		Archive Date: 07/25/97
DOCKET NO.  97-07 041	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu,
Hawaii

THE ISSUES

1.  Whether the character of the appellant's discharge from
service constitutes a bar to the receipt of Department of
Veterans Affairs (VA) benefits, other than health care
benefits under 38 U.S.C. Chapter 17.

2.  Entitlement to service connection for a skin disability,
claimed as a residual of Agent Orange exposure.

3.  Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right foot disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The appellant served on active duty from September 1967 to
August 1969.

In March 1987, the Board of Veterans' Appeals (Board)
remanded the issues of entitlement to service connection for
a right foot disability and a skin disorder.  When the case
was again before the Board in November 1990, service
connection was denied for a right foot disability.  In a
separate decision, the Board recharacterized the remaining
issue as entitlement to service connection for a skin
disorder, claimed as residuals of Agent Orange exposure, and
again remanded the claim.  The appellant subsequently
submitted additional evidence, seeking to reopen his claim
for service connection for a right foot disability.

By administrative decision in May 1992, the Regional Office
(RO) concluded that the character of the appellant's
discharge from service constituted a bar to his receipt of
benefits from the VA.  In May 1997, the Board remanded the
claim in an attempt to obtain additional information
concerning the appellant's discharge from service.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the character of his discharge
should not be a bar to the receipt of VA benefits.  He points
out that his discharge was characterized as honorable and
questions the authority for the VA to change its
characterization.  He asserts that the SPN is merely an
indicator or code, and does not represent conclusive
evidence.  He denies resigning from the service under the
threat of a court-martial.  He concedes that he was brought
up on charges for disobeying a direct order and that he faced
a court-martial, but claims that the charges were dropped.
He reports that he was involved in a crash in Korea in
January 1969 while on a classified insurgent operation and
that he had a forced landing which resulted in injuries to
his head, back, neck, and foot.  He maintains that he was
unconscious for five days and when he woke up, he was in a
psychiatric ward.  He states that he was told he had
assaulted a medical technician, and that he had been given
Thorazine.  He maintains that he was put on light duty
status; that, one day, while lying in his bunk, he was given
some papers to sign; and that if he did so, he would be sent
home.  He claims that there was no mention of any
administrative action or of any charges against him.

The veteran also contends, in effect, that service connection
is warranted for residuals of Agent Orange exposure, and that
the evidence he has submitted is new and material, warranting
reopening of his claim and a granting of service connection
for a right foot disability.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the weight of the evidence
establishes that the character of the appellant's discharge
from service is a bar to the receipt of VA benefits, other
than health care benefits, under 38 U.S.C. Chapter 17.  It is
also the decision of the Board that the evidence is against
the claim for service connection for a skin disability
secondary to Agent Orange exposure and that new and material
evidence has not been submitted to reopen a claim of
entitlement to service connection for a right foot
disability.

FINDINGS OF FACT

1.  The appellant was discharged from service pursuant to his
resignation as an officer for the good of the service.

2.  The appellant was not insane at the time he committed the
acts which led to his resignation.

3.  The appellant�s service does not qualify him as a veteran
and, therefore, no basis for service connection for a skin
disability secondary to Agent Orange exposure or a right foot
disability exists.

CONCLUSIONS OF LAW

1.  The character of the appellant's discharge or release
from service is a bar to the payment of VA benefits, other
than health care benefits, under 38 U.S.C. Chapter 17.  38
U.S.C.A. � 5303 (West 1991); 38 C.F.R. �� 3.12, 3.354(b)
(1996).

2.  Since the appellant has not attained veteran status,
service connection for a skin disability secondary to Agent
Orange exposure is denied.  38 U.S.C.A. � 101(2) (West 1991).

3.  Since the appellant has not attained veteran status, the
claim of whether new and material evidence has been submitted
to reopen a claim of entitlement to service connection for a
right foot disability is denied.  38 U.S.C.A. � 101(2) (West
1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Whether the Character of the
Appellant's Discharge From Service
Constitutes a Bar to the Receipt of VA
Benefits, Other Than Health Care Benefits
Under 38 U.S.C. Chapter 17.

Factual Background

A discharge certificate discloses that the appellant served
from September 1967 to December 1968.  His separation was to
accept a �WO� appointment.  Another discharge certificate
reflects active service from December 1968 to August 1969.
On each certificate, the appellant's discharge was
characterized as honorable.  The second discharge certificate
shows that he was discharged pursuant to �5 AR 635-120 SPN
522.�

Most of the appellant's service medical records are
unavailable, presumably having been lost in a fire at the
National Personnel Records Center in 1973.  All attempts by
the RO to obtain additional records, including personnel
records, from the service department concerning his service
have been unsuccessful.  In March 1986, the service
department responded to a request for information and
indicated that the record needed to respond to the request of
the RO was charged out of the file at the time of the fire at
the center in July 1973.  It would have been in an area that
suffered the most damage and may have been destroyed.  A
similar response was received from the service department in
July 1987.  It was also noted at that time that it was
assumed that the medical records were with the �201� folder
that was destroyed.

The available service medical records disclose that the
veteran was hospitalized in February 1969 after he passed out
while flying a helicopter.  He was referred for a psychiatric
evaluation, and nothing unusual was noted on mental status
evaluation.  The impression was no psychiatric disease.

Analysis

Where a former service member did not die in service,
pension, compensation or dependency and indemnity
compensation is not payable unless the period of service on
which the claim is based was terminated by discharge or
release under conditions other than dishonorable.  38
U.S.C.A. � 101(2).  A discharge or release from service under
certain specified conditions is a bar to the payment of
benefits unless it is found that the person was insane at the
time of committing the offense causing such discharge or
release, or unless otherwise specifically provided.  38
U.S.C.A.            � 5303(b).

An insane person is one who, while not mentally defective or
constitutionally psychopathic, except when a psychosis has
been engrafted upon such basic condition, exhibits, due to
disease, a more or less prolonged deviation from his normal
method of behavior, or who interferes with the peace of
society, or who has so departed (become antisocial) from the
accepted standards of the community to which by birth and
education he belongs as to lack the adaptability to make
further adjustment in the social customs of the community in
which he resides.  38 C.F.R.  � 3.354(a).  When a rating
agency is concerned with determining whether a veteran was
insane at the time he committed an offense leading to his
court-martial, discharge, or resignation, it will base its
decision on all the evidence procurable relating to the
period involved and apply the definition in subparagraph (A).
38 C.F.R. � 3.354(b).

Benefits are not payable where the former service member was
discharged or released under one of the following conditions:
(1) As a conscientious objector who refused to perform
military duty, wear the uniform, or comply with lawful order
of competent military authorities; (2) By reason of the
sentence of a general court-martial; (3) resignation by an
officer for the good of the service; (4) as a deserter; (5)
as a alien during a period of hostilities, where it is
affirmatively shown that the former service member requested
his or her release; (6) by reason of a discharge under other
than honorable conditions issued as a result of an absence
without official leave (AWOL) for a continuous period of at
least 180 days.  38 C.F.R.         � 3.12(a)(b)(c) (1995).

An officer may submit a resignation for the good of the
service when general court-martial charges are preferred
against him; he is under a suspended sentence of dismissal;
or he elects to tender his resignation because of reason
outlined in paragraph 5-12a(7), AR 635-100 prior to general
court-martial charges being preferred against him under UCMJ
and prior to being recommended for elimination under the
provisions of AR 635-100.  Army Regulation 635-120.

The issue in this case is one of status, i.e., whether the
appellant is a �veteran� as that term is defined by law.
There are few official records upon which to base a decision
in this case.  However, the records which are available do
not provide support for the appellant's claim.  The discharge
certificate demonstrates that the appellant was a warrant
officer and that he resigned for the good of the service.
The Army Regulation set forth above provides the
circumstances under which an officer may submit a
resignation.  While the appellant conceded that he was
brought up on charges of disobeying a direct order and faced
a court-martial, he asserted that he was acquitted and all
charges dropped.  This is inconsistent with the reason listed
on the discharge certificate for his separation.  The Board
emphasizes that it is relying on the reason for the
discharge, and not the SPN listed on the discharge
certificate.

The appellant also raised arguments during his hearing at the
RO in July 1993 concerning his mental capacity when he signed
the discharge papers.  When he was hospitalized in February
1969 following an episode of syncope, a psychiatric
evaluation showed no abnormality.  Clearly, there is no
evidence that the appellant was insane when he committed the
offense which led to his resignation.  The Board finds that
the appellant resigned for the good of the service as an
officer, that he is not, therefore, a veteran, and that the
character of his discharge serves as a bar to the receipt of
VA benefits.

II.  Service Connection for a Skin
Disability Secondary to Agent Orange
Exposure, and Whether New and Material
Evidence Has Been Submitted to Reopen a
Claim of Entitlement to Service
Connection for a Right Foot Disability

In Sarmiento v. Brown, 7 Vet.App. 80, 84 (1994), the United
States Court of Veterans Appeals (Court) stated that

[this] Court has held that Congress
established and allocated �chronological
obligations� to be fulfilled in the
process of adjudicating claims for
benefits by veterans.  In addition, we
have held that the statutes require the
Secretary to make discrete consequential
decisions at certain stages in the
adjudication process and to support those
decisions by statement of reasons or
bases.  Such statutorily required
decisions include:  Did the individual
establish his or her eligibility as a
proper claimant?  Was a well-grounded
claim submitted?  Was new and material
evidence submitted since the last final
denial of the claim?  The answers to
these questions will determine the nature
and extent of any further statutory
�chronological obligations.�

In order to qualify for VA benefits, a claimant must
demonstrate that he, she, or the party upon whose service the
claimant predicates the claim had the status of a �veteran.�
A person seeking to establish veteran status must do so by a
preponderance of the evidence, and the benefit-of-the-doubt
doctrine is not applicable to that determination of status.
Pursuant to 38 U.S.C.A. � 101(2), �[t]he term �veteran� means
a person who served in the active military, naval, or air
service, and who was discharged or released therefrom under
conditions other than dishonorable.� Struck v. Brown, 9
Vet.App. 145 (1996).

In light of the determination above that the character of the
appellant's discharge from service constitutes a bar to the
receipt of VA benefits, the appellant does not qualify as a
�veteran.�  In Sabonis v. Brown, 6 Vet.App. 426, 430 (1994),
the Court held that in a case where the law is dispositive of
the claim, it should be denied because of lack of legal
entitlement under the law.  Since the appellant is not a
veteran, there is, accordingly, no basis on which his claims
for service connection may be granted.

ORDER

Since the character of the appellant's discharge from service
constitutes a bar to entitlement to VA benefits, other than
health care benefits under 38 U.S.C. Chapter 17, the appeal
is denied.

Since the appellant does not qualify as a veteran for
purposes of entitlement to VA benefits, the claim for service
connection for a skin disability secondary to Agent Orange
exposure is denied.

Since the appellant does not qualify as a veteran for
purposes of entitlement to VA benefits, the claim as to
whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
right foot disability is denied.

	ROBERT E. O�BRIEN
	Acting Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: RICHARD V CHAMBERLAIN

condition: liver

text:
Citation NR: 9727000
Decision Date: 08/01/97		Archive Date: 08/14/97
DOCKET NO.  93-25 146	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine

THE ISSUE

Whether new and material evidence has been presented to
reopen the veteran's claim for service connection for
hepatitis.

ATTORNEY FOR THE BOARD

C. Hickey, Associate Counsel

INTRODUCTION

The veteran had active service from June 1947 to July 1967.

This appeal to the Board of Veterans' Appeals (Board) arises
from the June 1993 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Togus, Maine
which found that new and material evidence had been presented
with a 1993 application to reopen the veteran's claim for
service connection for hepatitis, but denied the service
connection claim on the merits.  The case was previously
before the Board in December 1995 when consideration of the
issue of service connection for hepatitis was deferred
pending further evidentiary development on remand.

The Board has classified the issue as shown on the first page
of this decision.  Although the RO has reviewed the claim for
service connections for hepatitis on a de novo basis, the
Board finds there is no prejudice to the veteran in appellate
consideration of the issue of whether new and material
evidence has been submitted to reopen the claim for service
connection for hepatitis.  The file shows that the veteran is
aware of the finality of prior decisions and that new and
material evidence is required to reopen such a claim.
Bernard v. Brown, 4 Vet.App. 384 (1993).

On preliminary review of the record the Board notes that in
an undated statement the veteran has expressed
dissatisfaction with a prior rating decision in March 1976
which denied his claims for service connection for lung
cancer and fever of unknown etiology.  Inasmuch as the March
1976 decision was affirmed by the Board it is subsumed by the
Board�s decision which is not subject to collateral attack by
a claim of clear and unmistakable error.  Smith v. Brown, 35
F.3d 1516 (Fed. Cir. 1994).  The veteran suggests that
reconsideration of the June 1977 Board decision may be
desired.  Reconsideration of an appellate decision may be
accorded at any time by the Board on motion by the appellant
or his representative or on the Board's own motion: (a) upon
allegation of obvious error of fact or law; (b) upon
discovery of new and material evidence in the form of
relevant records or reports of the service department
concerned; or (c) upon allegation that an allowance of
benefits by the Board has been materially influenced by false
or fraudulent evidence submitted by or on behalf of the
appellant. 38 U.S.C.A. � 7103 (West 1991 & Supp. 1996);
38 C.F.R. �� 20.1000, 20.1001 (1996).  A motion for
Reconsideration must set forth clearly and specifically the
alleged obvious error, or errors, of fact or law in the
applicable decision, or decisions, of the Board or other
appropriate basis for requesting reconsideration.  If the
applicable Board of Veterans' Appeals decision, or decisions,
involved more than one issue on appeal, the motion for
reconsideration must identify the specific issue, or issues,
to which the motion pertains. 38 U.S.C.A. � 7103; 38 C.F.R.
� 20.1001.  In the absence of a motion for reconsideration
the Board will only consider the issue currently on appeal.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that new and material
evidence has been submitted to reopen a claim for service
connection for hepatitis and that service connection should
be granted for this condition.  He asserts that he has
hepatitis and/or residuals thereof.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims folders.  Based on our review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that there is no new and
material evidence to reopen the claim for service connection
for hepatitis.

FINDINGS OF FACT

1.  By an unappealed RO rating decision in April 1975,
service connection for hepatitis was denied.

2  The additional evidence received since the April 1975 RO
rating decision includes medical records which indicate that
the veteran does not have hepatitis or residuals thereof,
published materials concerning the general characteristics of
acute and chronic hepatitis, and the veteran�s lay assertions
that he has hepatitis or residuals of hepatitis.

3.  The newly received evidence is duplicative of evidence
previously considered by the RO in 1975, does not tend to
prove that the veteran has hepatitis or residuals thereof
that had their onset in service, and, when considered in the
context of all the evidence of record, does not raise a
reasonable possibility of a changed outcome regarding the
denial of service connection for hepatitis.

CONCLUSION OF LAW

The additional evidence submitted since the April 1975 RO
rating decision, denying service connection for hepatitis, is
not new and material; the claim is not reopened; and the
prior RO rating decision is final.  38 U.S.C.A. �� 5108, 7105
(West 1991); 38 C.F.R. �� 3.156, 3.160(d) (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

Service medical records reveal that in April 1950 the veteran
was hospitalized for infectious, acute hepatitis, with
jaundice.  During that illness he was noted to have fever up
to 102 degrees.  After 37 days the veteran's clinical
findings had gradually returned to normal.  He was returned
to duty in late May 1950.  The report of his February 1967
separation examination indicated that the veteran had
hepatitis with jaundice in service with no sequelae.

By rating action of April 1975 service connection was denied
for residuals of hepatitis, which were not found on most
recent examination.  The veteran was notified of this
determination in May 1975 and he did not appeal.

Of record is the July 1975 private hospital summary signed by
G.L. Robinson, D.O., which noted that the veteran was
admitted in June 1975 for chief complaints of chest and back
pain, as well as recurrent chills and fever that predated
chest surgery and hiatal hernia.  Extensive evaluative
studies revealed no abnormalities, with the exception of
elevated immunoglobulin M (IgM), which was considered to be
suggestive of hepatic disease, chronic infection,
globulinemia, acute immune process as viral hepatitis,
trypanosomiasis, mononucleosis, malaria and actinomyces.
Liver disease, and viral hepatitis were substantially ruled
out.

The veteran was seen by Dr. Robinson in April 1976 for chief
complaint of historical fever, night sweats, and chest pain.
The hepatic profile was normal and within adequate limits at
that time.

At a September 1976 personal hearing the veteran testified
that that he believed that he had recovered from hepatitis at
that time.  He also related that he had been told that his
liver was enlarged as recently as two years earlier.

A June 1977 decision of the Board found that the fevers which
the veteran suffered during service subsided after treatment
of the underlying diagnosed illness leaving no residual
disability, and denied service connection for fever of
unknown etiology.

VA outpatient records indicate that in March 1978 the veteran
reported that the skin of his hands and face appeared yellow
at times.  The examiner noted that the sclera were not
yellow, and commented that the rapid appearance and
disappearance of the reported symptoms precluded jaundice.

A service department medical report dated in January 1983
shows that when the veteran was evaluated for multiple
unrelated medical problems it was noted that he had a history
of hepatitis in 1949 and his most recent liver enzymes were
within normal limits.

Private medical records demonstrate that the veteran
underwent a liver-spleen scan in March 1987 which indicated
that the liver and spleen appeared normal.  Liver size was in
the upper limit of normal.  The impression was no focal
defects seen, possibly early diffuse cirrhosis present.

Of record is a copy of a laboratory report from Affiliated
Laboratories Inc., in Bangor Maine, which is largely
illegible, but bears the notation "hepatitis panel," and the
date April 1983 or 1985.  Positive results are indicated for
tests whose identification is indecipherable.

Also of record is the report of a hepatitis profile conducted
in October 1993 by the Northern Diagnostic Laboratories, in
South Portland, Maine, which indicates positive test results
for Hep B Core AB, and Hep A AB (IGG+IGM).

On remand in December 1995 the RO was directed to request
that Affiliated Laboratories provide copies of the hepatitis
panel dated in April 1983 or April 1985 which is described
above.  In February 1996 Affiliated Laboratories responded
that no medical records were available prior to 1988.

The veteran has also submitted copies of materials published
by the Groiler Electronic Publishing, Inc., and excerpts from
The Washington Manual, Manual of Medical Therapeutics, 27th
ed., published by the School of Medicine, Washington
University, which discuss the general characteristics of
acute and chronic hepatitis, as well as an excerpt from an
Encyclopedia Britannica concerning Digestion and Digestive
System which discusses the general characteristics of liver
disease to include cirrhosis.

In March 1996 a VA examination was conducted to determine the
residuals of hepatitis.  The examiner noted the veteran�s
history of hepatitis in service and stated that there was not
a great deal of information about his liver in the
intervening years.  The results of the 1987 liver-spleen scan
were noted.  The March 1996 examiner commented that October
1993 tests had revealed positive antibodies to hepatitis B
and hepatitis A.  The veteran indicated at the time of
examination that he might have cirrhosis, but was not being
treated for it at that time.  Objective examination revealed
the veteran was not jaundiced and there were no spider
angiomata.  The liver percusses were normal in size and there
was no palpable liver edge.  The impression was a history of
hepatitis of undetermined type.  The presence of antibodies
to hepatitis B and hepatitis A indicated past infection and
recovery.  A July 1996 addendum to the March 1996 VA
examination indicates that repeat liver function tests were
mildly abnormal.  The examiner commented that multiple
etiologies could account for the mildly elevated liver
function tests.  The examiner stated it did not appear the
liver function test abnormalities were related to the
veteran�s remote history of hepatitis from which he had
recovered.

Received in December 1996 was the veteran�s statement
expressing his opinion that swelling and ulcers in his legs
were the result of hepatitis.

Legal Analysis

Service connection connotes many factors, but basically it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. 38 U.S.C.A.
�� 1110, 1131, 1153.  Such a determination requires a finding
of a current disability which is related to an injury or
disease incurred in service. Watson v. Brown, 4 Vet.App. 309,
310 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992).

Service connection may 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)(1996).  Where the
condition noted during service is not, in fact, shown to be
chronic, a showing of continuity of symptomatology after
discharge is required to support the claim.  38 C.F.R.
� 3.303(b).

By rating action in April 1975, the RO denied service
connection for hepatitis.  The veteran was notified of this
determination and he did not appeal.  An unappealed RO rating
decision is final with the exception that a claimant may
later reopen the claim if new and material evidence is
submitted.   38 U.S.C.A. �� 5108, 7105 (West 1991); 38 C.F.R.
� 3.160(d) (1996).  The question now presented is whether new
and material evidence has been submitted, since the April
1975 RO rating to permit reopening of the claim.  Manio v.
Derwinski, 1 Vet.App. 140 (1991).  For evidence to be deemed
new, it must not be cumulative or redundant; to be material,
it must be relevant and probative to the issue at hand.  New
evidence is probative when it tends to prove or actually
proves an issue; that is, it tends to prove the merits of the
claim as to each essential element that was a specified basis
for the last disallowance of the claim.  Evans v. Brown, 9
Vet.App. 273 (1996).  If it is new and probative, the
evidence when viewed in the context of all the evidence, must
raise a reasonable possibility of a change in the prior
adverse outcome.  38 C.F.R. � 3.156(a) (1996); Colvin v.
Derwinski, 1 Vet.App. 171 (1991).

The additional evidence submitted since April 1975 consists
of published material concerning the general characteristics
of acute and chronic hepatitis, as well as medical records,
VA, service department, and private, which are negative for
evidence of post-service residuals of hepatitis, and the
veteran�s own testimony and statements.  On evidentiary
evaluation the Board notes that the published materials do
not bear any direct reference to the veteran�s individual
case and therefore are not probative of the issue at hand in
this appeal, the incurrence in service of chronic residuals
of hepatitis.  Additionally, the post-service medical records
described above relate no clinical findings which demonstrate
the presence of current residuals of hepatitis.  In general
the records reflect normal clinical findings pertaining to
the liver.  Moreover, the opinion of the 1996 VA examiner was
that mildly abnormal liver function tests did not appear to
be related to the veteran�s remote history of hepatitis from
which he had recovered.  The veteran himself testified in
1976 to his belief that he had recovered from hepatitis.
However, he recently asserts that he has residuals of
hepatitis.  His lay statements regarding an etiological link
between current symptoms and hepatitis during service are not
probative of the issue of service incurrence of residuals of
hepatitis, because lay persons (i.e., persons without medical
expertise) are not competent to offer medical opinions.
Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5
Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492
(1992).  Accordingly, the Board finds that although some of
the additional evidence received since the April 1975 rating
action is new, it is not material to the issue of service
connection of residuals of hepatitis and does not raise a
reasonable possibility of a change outcome regarding the
denial of the claim.  Nor is the recently submitted evidence
probative because it does not tend to show that the veteran
currently has hepatitis or residuals thereof that had their
onset in service.

As no new and material evidence has been submitted, there is
no basis to reopen the claim for service connection for
hepatitis, and the April 1975 RO rating decision remains
final.

The veteran is advised that he may reopen the claim for
service connection for hepatitis at any time by notifying the
RO of such an intention and submitting supporting evidence.
An example of supporting evidence is a medical report showing
that he currently has this disorder.  Graves v. Brown, 8
Vet.App. 522 (1996).

ORDER

The application to reopen the claim for service connection
for hepatitis is denied.

	RICHARD V. CHAMBERLAIN
	Acting Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

- 2 -


judge_norm: BARBARA B COPELAND

disposition: remanded

text: In view of the foregoing, and given the duty to assist the veteran in the development of her claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997), the case is REMANDED to the RO for the following development:

text:
Citation NR: 9728000
Decision Date: 08/12/97		Archive Date: 08/19/97
DOCKET NO.  94-16 767	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for the residuals of a left
ankle injury.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and appellant's mother

ATTORNEY FOR THE BOARD

D. F. Chiappetta, Jr., Associate Counsel

INTRODUCTION

The veteran had active duty with the US Army from November
1992 to May 1993.

This matter comes before the Board of Veterans� Appeals
(Board) from an August 1993 RO rating decision which denied
which denied the veteran's claim for service connection for
the residuals of a left ankle injury.

REMAND

In May 1996, the Board remanded the veteran's claim for
additional development including a VA orthopedic examination
of her left ankle.  A review of the claims file indicates
that although VA examinations were scheduled in October and
November 1996, the veteran failed to report.   The veteran's
service representative has correctly asserted that the file
does not contain copies of letters informing the veteran that
she was scheduled for examinations on the dates that she did
not keep.  As such, a new examination should be scheduled and
the veteran should be contacted at her most recent address of
record, notifying her of the time and location of the
examination.  If the veteran does not report for the
examination(s), a copy of the notification letter should be
maintained in her claims folder, to verify that such effort
was made to inform her of the examination.

In view of the foregoing, and given the duty to assist the
veteran in the development of her claim under 38 U.S.C.A. �
5107(a) (West 1991 & Supp. 1997), the case is REMANDED to the
RO for the following development:

1. The RO should contact the veteran and
request the names and addresses of, and
dates of treatment by, any health care
providers (VA and non-VA) who have
treated her for a left ankle disorder
since February 1994.  When the veteran
responds and provides any necessary
authorizations, the named health care
providers should be contacted by the RO
and asked to submit copies of all medical
records documenting their treatment which
are not already in the claims folder.
All records obtained should be associated
with the claims folder.

2. Thereafter, the RO should schedule the
veteran for a VA orthopedic examination
to determine the presence and, if
present, the severity of any left ankle
disorder, to include torn ligaments.  The
examiner should conduct all necessary
tests, including those for range of
motion, weakness, and pain on use.  X-ray
studies should be performed, if
indicated.  The claims folder should be
made available to and reviewed by the
examining physician.  The examiner should
specifically note whether there is
ligamentous damage to the left ankle and
express an opinion, with complete
rationale, as to the medical probability
that any current ankle disorder is
related to her in-service ankle injuries.
If the veteran does not report for the
scheduled examination(s), a copy of the
letter notifying her to report for such
examination(s) should be associated with
the claims folder.

Thereafter, the claim should be reviewed by the RO.  If the
claim is denied, the veteran and his representative should be
issued a supplemental statement of the case and given an
opportunity to respond.  Then the case should be returned to
the Board, if in order.

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans� Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans� Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

	BARBARA B. COPELAND
	Member, Board of Veterans' Appeals

38 U.S.C.A. � 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.  38 C.F.R. � 20.1100(b)
(1996).

- 2 -


judge_norm: JOHN E ORMOND, JR

text:
Citation NR: 9729000
Decision Date: 08/21/97		Archive Date: 08/26/97
DOCKET NO.  94-16 549	)	DATE
	)
	)

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

THE ISSUE

Whether the appellant has established basic eligibility for
Department of Veterans Affairs (VA) benefits.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Keith L. Salas, Associate Counsel

INTRODUCTION

This matter is before the Board of Veterans� Appeals (Board)
on appeal from a determination by the Department of Veterans
Affairs (VA) Manila, Philippines Regional Office (RO) that
denied eligibility for VA benefits on the grounds that the
appellant did not have valid military service.  The claim was
previously remanded in January 1997 for certification of
service.  The requested development has been completed.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends, in essence, that he has qualifying
service as a guerrilla during World War II.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the claims
file.  Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant is not eligible for
VA benefits.

FINDING OF FACT

The service department has twice certified that the appellant
had no service as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of
the United States Armed Forces.

CONCLUSION OF LAW

The appellant is not eligible for VA benefits. 38 U.S.C.A. ��
101, 107 (West 1991 & Supp. 1997); 38 C.F.R. �� 3.1, 3.8,
3.203 (1996).

REASONS AND BASES FOR FINDING AND CONCLUSION

38 U.S.C.A. � 1110 (West 1991), pertaining to basic
eligibility for wartime disability compensation benefits,
requires that a recipient have been a veteran.  Furthermore,
the provision requires that injury or disease be suffered,
contracted, or aggravated during active military, naval or
air service.  The term �veteran� means a person who served in
the active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable.  38 U.S.C.A. � 101(2); 38 C.F.R. � 3.1(d).

Service before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces of
the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces, organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the
Commander in Chief, Southwest Pacific Area, or other
competent authority in the Army of the United States, shall
not be deemed to have been active military, naval, or air
service for the purposes of any law of the United States
conferring rights, privileges, or benefits upon any person by
reason of the service of such person or the service of any
other person in the Armed Forces, except for specified
benefits including disability compensation benefits
authorized by chapter 11, title 38, United States Code.  38
U.S.C.A. � 107(a); 38 C.F.R. � 3.8(c), (d).

Service in the Philippine Scouts under section 14 of Public
Law 190, 79th Congress (the �Armed Forces Voluntary
Recruitment Act of 1945�), shall not be deemed to have been
active military, naval or air service, except for benefits
including compensation for service-connected disability or
death; and dependency and indemnity compensation for service-
connected death.  All enlistments and reenlistments of
Philippine Scouts in the Regular Army between October 6,
1945, and June 30, 1947, inclusive, were made under the
authority of Public Law 190 as it constituted the sole
authority for such enlistments during that period.  38
U.S.C.A. � 107(b); 38 C.F.R. � 3.8.

For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation or burial
benefits, VA may accept evidence of service submitted by a
claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions:
(1) the evidence is a document issued by the service
department, or a copy of an original document if the copy was
issued by the service department or if the copy was issued by
a public custodian of records who certifies that it is a true
and exact copy of the document in the custodian�s custody;
(2) the document contains needed information as to length,
time and character of service; and (3) in the opinion of VA
the document is genuine and the information contained in it
is accurate.  38 C.F.R. � 3.203(a) (1996).  When the claimant
does not submit evidence of service or the evidence submitted
does not meet the requirements discussed above, VA shall
request verification of service from the service department.
38 C.F.R. � 3.203(c) (1996).  See also Sarmiento v. Brown,  7
Vet.App. 80 (1994).

The Court of Veterans Appeals held in Sarmiento, that where
evidence submitted by an appellant to establish service is
insufficient under 38 C.F.R. � 3.203(a), 38 C.F.R. � 3.203(c)
requires VA to request certification from the proper branch
of service.  The Court emphasized that the language of the
regulation is mandatory and does not contain any limitation
on the number of times that certification must be requested.
Although in dicta, the Court noted that in a �typical� case,
one certification would suffice, the Court found that
recertification was required where incorrect identifying
information was sent to the service department.  Id.

The Court has held that findings by the United States Armed
Services for purposes of establishing service in the U.S.
Armed Forces are binding on the VA.  Duro v. Derwinski, 2
Vet.App. 530, 532 (1992); see also Dacoron v. Brown, 4
Vet.App. 115, 120 (1993).

In March 1971 the appellant filed a claim for service
connection for a gunshot wound allegedly sustained in
December 1943 during guerrilla activities.

The RO requested verification of service from the Department
of the Army.  The appellant�s name was listed as [redacted]
[redacted].  No service number was provided.  The date and
place of birth were listed as October 23, 1923, [redacted],
[redacted].  The dates of service were listed as June 3,
1943 to July 5, 1946.  The branch of service was listed as
the Army.  The rank and organization was listed as �Pfc 1st
Inf Regt PQOG.�  Except for the organization, the information
appears to have been taken from the appellant�s claim.

The April 1971 the Department of the Army certified that the
appellant had no service as a member of the Philippine
Commonwealth Army including the recognized guerrillas in the
service of the United States Armed Forces.

In June 1993, the appellant attempted to reopen a claim for
benefits.  He was notified that he had been previously been
found not have valid service either as a member of the
Philippine Commonwealth Army or as a recognized guerrilla.
In September 1993, the appellant indicated that he was a
recognized guerrilla.  He reiterated this contention in his
substantive appeal

A certification from the Department of National Defense,
General Headquarters, Armed Forces of the Philippines, dated
in September 1991, indicated that the appellant�s name was
included on the Approved Revised Reconstructed Guerrilla
Roster of �C Co 1st Bn, 1st Inf Regt PQOG� with dates of
recognition from January 1, 1945 to August 31, 1945, and with
a revised dated of recognition of May 7, 1942.  The
certification also states that the appellant joined on June
5, 1943 and was discharged on September 1, 1945.  The
document indicates that the appellant�s date and place of
birth, organization, date joined, and date discharged, were
obtained from the appellant�s Form 23, Affidavit for
Philippine Army Personnel. The form indicates that the
appellant was born on June [redacted], 1923 in [redacted], [redacted].

The appellant testified at a hearing before the RO that he
was inducted into the guerrilla forces in 1943, and served
with his unit until discharge in 1945.

A photocopy of a Form 23, Affidavit for Philippine Army
Personnel, dated in July 1946 was received in July 1996.  The
appellant asserts in the affidavit that he had guerrilla
service from June 5, 1943 to August 31, 1945, and was
discharged on September 1, 1945.  The appellant indicates in
the affidavit that from June 6, 1943 through December 31,
1944 he was with C Co. 1st Bn. 1st Inf. Regt. where he
engaged in intelligence, combat, and harassing the enemy.  He
asserted that on January 1, 1945 he was attached to the 1st
Cav. Div. where he engaged in combat and mopping up
operations.  The appellant listed his birth date as June 11,
1923 and his birthplace as [redacted], [redacted].

Another attempt at verification was made in March 1997.  This
request took account of inconsistencies in the appellant�s
place and date of birth.  It listed the appellant�s place of
birth as [redacted], [redacted], and his date of birth as June [redacted],
1923.  This verification request also provided the name of
the appellant�s father as listed on the Form 23.  The U.S.
Army Reserve Personnel Center (USARPC) responded that
evidence was insufficient to warrant a change in the prior
negative certification of April 1971.

Without verification of qualifying active military, naval or
air service, the appellant is not considered a veteran and
does not have basic eligibility for VA benefits.  As the law,
and not the evidence, is dispositive on this issue, the
appellant�s claim must accordingly be denied because of lack
of legal entitlement.  Sabonis v. Brown, 6 Vet.App. 426, 430
(1994).

ORDER

Basic eligibility of the appellant for Department of Veterans
Affairs Benefits is denied.

	JOHN E. ORMOND, JR.
	Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

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judge_norm: WAYNE M BRAEUER

condition: back

text:
Citation NR: 9730000
Decision Date: 08/29/97		Archive Date: 09/04/97
DOCKET NO.  96-14 964	)	DATE
	)
	)

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

THE ISSUES

Whether new and material evidence to reopen a claim for
service connection for lumbosacral strain has been submitted.

Whether new and material evidence to reopen a claim for
service connection for pes planus has been submitted.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Neil Reiter, Counsel

INTRODUCTION

The veteran served on active duty from August 1985 to May
1988.

In a rating action dated in December 1993, the regional
office denied service connection for pes planus and for
lumbosacral strain.  The regional office granted service
connection for residuals of abdominal adhesions, residuals of
a right oophorectomy, evaluated as 10 percent disabling, and
found that the veteran was entitled to special monthly
compensation benefits.  She was advised of this rating action
in a letter in January 1994, and of her right to appeal.  A
timely appeal was not perfected regarding the denial of
service connection for the two disabilities mentioned.

In June 1995, the veteran indicated that she was submitting
new and material evidence to reopen her claim for service
connection for bilateral pes planus and lumbosacral strain.
The regional office subsequently denied the veteran's claims
for service connection for these disabilities, indicating
that new and material evidence to reopen the claim for
service connection for these disabilities had not been
submitted.  The veteran then timely appealed this rating
determination.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that she did not have any
problem with her feet prior to service, that she began having
problems with painful feet, diagnosed as pes planus in
service, and that her symptoms relating to this disability
continued after discharge from service.  She further contends
that she injured her back in service, and that she continued
to have pain in the back as the result of this injury
thereafter.  She contends that medical records show continued
treatment for both disabilities after discharge from service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence to
reopen a claim for service connection for a back disability
has not been submitted.  It is the further decision of the
Board that new and material evidence to reopen a claim for
service connection for bilateral pes planus has been
established, and a de novo review of the evidence establishes
entitlement to service connection for bilateral pes planus.

FINDINGS OF FACT

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

2.  In a rating action dated in December 1993, the regional
office denied service connection for bilateral pes planus and
for residuals of an injury to the back.

3.  Additional evidence received since the December 1993
rating action denying service connection for residuals of an
injury to the back is cumulative in nature or is not
probative as to whether a back disability had its onset in
service.

4.  Additional evidence received since the December 1993
rating action establishes that the veteran's bilateral pes
planus initially became symptomatic in service.

CONCLUSIONS OF LAW

1.  The evidence received since the unappealed rating action
of December 1993 denying service connection for residuals of
an injury to the back is not new and material; therefore, it
is insufficient to reopen the veteran's claim for service
connection for this disability.  38 U.S.C.A. �� 5107, 5108,
7105 (West 1991); 38 C.F.R. �� 3.104, 3.156, 20.200--20.202
(1996).

2.  The evidence received since the unappealed rating action
of December 1993 denying service connection for bilateral pes
planus is new and material, reopening the veteran's claim,
and the evidence, both new and old, establishes that
bilateral pes planus was incurred in service.  38 U.S.C.A.
�� 1131, 5107, 5108, 7105 (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Background

The veteran�s physical examination for enlistment was
negative for any complaints, findings, or diagnoses
indicative of bilateral pes planus or a disability of the
back.  In early September 1985, the appellant complained of
back pain of three days' duration.  She was provided
medication.  Six days later, she was seen for complaints of
pain in the back, feet, and teeth of one week's duration.
She noted that she had had low back pain secondary to
activity for one week.  Physical examination showed a full
range of motion of the back, with tenderness over the
trapezius and paraspinal muscles.  The diagnostic assessment
was myalgia secondary to physical training.  Two days later
she was seen for back pains, stating that there had been no
change.  Physical examination was unchanged.

In October 1986, the veteran complained of bilateral sore
feet, "fallen arches."  She stated that she had been seen by
podiatry and evaluated as having "intermittent fallen
arches."  She stated that she was on profile, and had been
informed to come to the emergency if the pain worsened.  She
stated that she was unable to walk because of extreme
tenderness to touch.  Physical examination of the lower
extremities showed no deformity, edema, cyanosis or clubbing.
It was noted that the veteran's pain appeared out of
proportion to physical findings, and she was referred to
podiatry.

In March 1987, the veteran again complained of back pain of
three days' duration, accompanied by diarrhea and headaches
above the right eye.  On physical examination, the back was
tender to palpation over the lower rib margins posteriorly
and anteriorly.  The diagnostic impression was probable viral
enteritis, rule out vaginitis, rule out pregnancy.  About a
week later, she was again seen with complaints of nausea,
vomiting, and lower back pain of three weeks' duration.  It
was noted that she was taking Ampicillin for a urinary tract
infection.  The diagnostic impression was viral syndrome
versus response to antibiotics, or nonresolving cystitis.

In October 1987, the veteran was seen complaining of a back
problem, stating that she fell off of a tent, landing on her
back.  She also complained of some problem with her upper
thigh.  Physical examination showed no swelling or
dislocation, and flexor and extensors were restricted in the
thighs.  Lateral movement was within normal limits.  She also
complained of pain with heel and toe gait.  The diagnostic
impression was soft tissue injury, and medication and a
heating pad were prescribed.  It was also indicated that she
should do no heavy lifting.

An initial claim for entitlement to service connection for
bilateral pes planus and for residuals of an injury to the
back was received from the veteran in October 1992, and on
this claim, she indicated that she received treatment for a
back disability in August 1992.  Medical records were
received showing the veteran's treatment and surgery for a
hysterectomy in 1992.

On a Department of Veterans Affairs (VA) examination in
January 1993, the veteran's complaints included pain in the
low back, feet, and neck.  On the examination, she reported
that she received treatment for her back and feet in 1992.
On orthopedic examination, she reported that she had had
bilateral flat feet for many years, and that she wore arch
supports in service.  She indicated that she had pain,
soreness, and tenderness with prolonged standing, and cramps,
aching, pain, and occasional swelling with use of the feet.
She reported also that she fell in 1986, injuring her lower
back, and that she currently had some arthritis in the lumbar
spine.  She stated that she had chronic low back pain.

On physical examination, there was some lumbosacral
tenderness and pain with motion.  There was some limitation
of motion of the lumbar spine.  Examination of the feet
showed lost arches and the heels were not valgus.  There was
no other swelling, tenderness, or deformity of the feet
identified.  The neurovascular structure was intact.  X-rays
of the feet and of the lumbar spine were normal.  The
diagnoses were bilateral pes planus and lumbosacral strain.

In a rating action dated in December 1993, the regional
office denied service connection for bilateral pes planus,
indicating that there was no continuity of treatment
subsequent to service for this disability.  In addition, the
regional office denied entitlement to service connection for
residuals of a back injury in service, indicating that there
was no evidence of a continuity of symptomatology and
treatment after the fall and after service.  In January 1994,
the veteran was advised of these rating actions and of her
right to appeal.  She did not present a timely appeal.

The veteran attempted to reopen her claim for service
connection for bilateral pes planus and residuals of a back
injury in June 1995, and medical records relating to her
treatment in 1992 and 1993 were received subsequently.  Some
of these records related to disabilities unrelated to the
claimed disabilities.  Hospital records were also received
showing treatment for unrelated disabilities in 1989, and
these records for 1989 failed to show any complaints,
findings, or diagnoses relating to bilateral pes planus or of
a disability of the lumbar spine.

In July 1992, the veteran was seen for complaints of low back
pain which began in January of that year.  It was noted that
she had been treated for pelvic disease in March 1992, with
the pain thought to be due to kidney problems, and that the
back pain worsened with the veteran's hysterectomy.  It was
noted that she was having midback pain bilaterally, with
radiation to the left flank and up to the shoulders.
Physical examination revealed paraspinous muscle tenderness
of the low back.  On another occasion, it was noted that she
had had back pain since January 1991.  In August 1992, she
was provided lumbar epidural steroid injections on three
occasions.

The veteran was hospitalized in October and November 1992 for
treatment of alcohol and drug dependence.  She also provided
a history of pain in the feet and back.  She reported that
she had had a nerve block in August 1992 for chronic back
pain because "she fell on her back" while in the military.
Physical examination showed no pertinent abnormalities at the
time of admission.  X-rays of the thoracic and lumbar spine
were essentially within normal limits, aside from a
scoliosis.

She was then admitted for approximately one year to a VA
domiciliary in early December 1992 for the drug and alcohol
dependency program.  She provided a history of back pain
since falling in service, with recent nerve blocks.  She also
had arthritic complaints of the feet and ankles.  Clinical
notes showed that in late December 1992 she was referred for
evaluation of bilateral foot pain around the first three
metatarsophalangeal joints of both feet.  She indicated that
the symptoms had been present since 1986.  Physical
examination showed tenderness of the feet.  She was sent for
orthotics for shoes and for a podiatry consultation.

In January 1993, a podiatry consultation showed that the
veteran was presenting with pain in the arches of the feet,
and that she was taking Naprosyn for pain in the back due to
arthritis as well.  Physical examination showed pain on the
medial arch areas with pronated feet.  It was recommended
that she receive accommodative devices to help to relieve
pressure in the arches.  She also received treatment for pain
in the right ankle in 1993, diagnosed as chronic ankle
sprain.

The appellant testified at a hearing at the regional office
in February 1992, and she stated that she had not had any
problems or pain with her back or feet prior to service.  She
indicated that she had received treatment for these
disabilities shortly after discharge from service beginning
in 1989.

II.  Analysis

In order to reopen a claim for service connection, it is
incumbent upon the applicant to submit new and material
evidence which bears directly and substantially upon the
specific matter under consideration and which is neither
cumulative nor redundant.  38 C.F.R. � 3.156(a), Colvin v.
Derwinski, 1 Vet.App. 171 (1991).  The evidence must be
material, as it must be relevant and probative of the issue
at hand.  Additionally, to be considered new and material
evidence, there must be a reasonable possibility that the new
evidence, when viewed in the context of all of the evidence,
both new and old, would change the outcome.  Smith v.
Derwinski, 1 Vet.App. 178 (1991).

A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service.  Watson v. Brown, 4 Vet.App.
309, 314 (1993).  In order to establish entitlement to
service connection, there must be competent evidence of a
current disability (a medical diagnosis); of the incurrence
or aggravation of the disease or injury in service (lay or
medical evidence); and of a nexus between the inservice
injury or disease and the current disability (medical
evidence).  Caluza v. Brown, 7 Vet.App. 498 (1995).

Entitlement to service connection for a back disability was
denied by the regional office in a rating action in December
1993.  The veteran did not submit a timely appeal to this
rating action, and recently, she has attempted to reopen the
claim based on the submission of additional evidence.

Basically, in reviewing the evidence before and after the
rating decision of December 1993, the Board believes that the
additional evidence received since such decision referable to
a back disability is not new and material.  The evidence of
record shows that the veteran had some complaints of low back
pain in the month or two shortly after entering service,
possibly tied to her initial physical training.  In any
event, these complaints were acute and transitory in nature
and there were no further complaints of back pain in late
1985 or 1986.  In March and April 1987, the veteran had
complaints of back pain associated with other symptoms, and
viral enteritis was suspected.  These complaints also
receded, without findings or a diagnosis of a chronic low
back condition.

The veteran was treated in October 1987 for complaints of
back pain following a fall from a tent.  Physical examination
revealed a soft tissue injury.  Thereafter, the service
medical records failed to show any chronic complaints
relating to the low back area, or further residuals of the
fall.  The medical records shortly after the veteran's
discharge from service in 1989 failed to show any complaints,
findings, or diagnoses indicative of a chronic disability of
the lumbosacral spine or low back area.

The veteran has recently introduced evidence showing
treatment at a private clinic for complaints of low back pain
in mid-1992, in which she related such pain as beginning in
early 1991 or 1992.  As this history was provided by the
veteran prior to the submission by her of a claim for service
connection for a low back disability in late 1992, the Board
finds that such history is far more credible than the history
she provided after the submission of her claim for service
connection in which she dated the onset of back pain to her
service injury.

In essence, the veteran's current statements on appeal and at
her hearing, and the submission of the additional evidence
since she attempted to reopen her claim, do not provide
medical evidence establishing an etiological connection
between her current disability of the low back area and any
disability treated in service.  In this regard, causative
factors of a disease amount to a medical question; only a
physician's opinion would be competent evidence.  Grottveit
v. Brown, 5 Vet.App. 91 (1993).  The veteran has not
submitted any medical evidence or medical opinion linking her
current disability of the low back area with any treatment or
incident which occurred during service.  Accordingly, the
Board finds that the veteran has not provided the necessary
evidentiary requirements to reopen her claim for service
connection for a low back disability.  38 U.S.C.A. �� 5107,
5108, 7105; 38 C.F.R. �� 3.104, 3.156, 20.200--20.202.

With regard to the veteran's claim for service connection for
bilateral pes planus, the Board has again reviewed the
evidence submitted by the appellant recently with the
evidence of record at the time of the regional office rating
action in December 1993.  In essence, the Board finds that
this new evidence, including her testimony at the hearing in
which she stated that she had had no problems with her feet
prior to service, and the evidence showing treatment for
problems with her feet in late 1992 and early 1993 as new and
material evidence, which leads to a de novo consideration of
her claim for service connection for this disability.

In summary, the current record shows that the veteran
initially began having problems with her feet in 1986,
approximately a year after commencing service.  In 1986, she
provided a history that she had received treatment at the
podiatry clinic for "fallen arches."  While the records
relating to the treatment at the podiatry clinic are absent,
the Board believes that her history at the time in service is
credible, establishing symptoms of pes planus initially
manifested in service.  The evidence shows that the VA
examination in 1992 resulted in a diagnosis of bilateral pes
planus, and treatment records in late 1992 and early 1993
again show treatment for symptoms indicative of pes planus
while at the domiciliary.  The veteran has indicated that her
symptoms were consistent between 1986 and the present.  The
evidence shows a continuity of symptomatology from the time
in service to the time that pes planus was diagnosed after
service.  As a result, the criteria for entitlement to
service connection for bilateral pes planus have been met.
38 U.S.C.A. �� 1131, 5107, 5108, 7105.

ORDER

New and material evidence to reopen a claim for service
connection for a back disability has not been submitted.  To
this extent, the appeal is denied.

Service connection for bilateral pes planus is granted.

	WAYNE M. BRAEUER
	Member, Board of Veterans' Appeals

38 U.S.C.A. �  7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination.  This proceeding has
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988.  Veterans' Judicial Review Act,
Pub. L. No. 100-687, � 402, 102 Stat. 4105, 4122 (1988).  The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.

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