judge_norm: J E DAY

text:
Citation Nr: 9821000
Decision Date: 07/09/98    Archive Date: 07/15/98

DOCKET NO.  94-14 241	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an increased (compensable) rating for
lumbosacral strain.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Veteran and his spouse.

ATTORNEY FOR THE BOARD

S. M. Peace, Associate Counsel

INTRODUCTION

The veteran had active military service from January 1942 to
November 1943.

This matter came before the Board of Veterans� Appeals
(Board) on appeal from a December 1992 rating decision of the
Columbia, South Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA) that denied awarding a
compensable rating for the service-connected lumbosacral
strain.

The veteran and his wife provided testimony before a hearing
officer at the RO in June 1993.

The Board remanded the case in November 1997 for an
examination and for adjudication of an intertwined claim for
service connection for lumbar disc disease.  The service
connection claim was denied by a rating decision in February
1998 and the veteran has not filed a notice of disagreement
to date.  Accordingly, that issue is not before the Board.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran and his representative contend, in essence, that
his service-connected lumbosacral strain has increased in
severity greater than the current evaluation.  Specifically,
the veteran contends he has increased symptoms manifested by
chronic low back pain, weakness in the left thigh, and left
foot drop.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.  Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the award of a compensable evaluation for
service-connected lumbosacral strain.

FINDINGS OF FACT

1. The claim for increased rating for lumbosacral strain is
plausible, and the Department has obtained medical
treatment records, accorded the veteran a VA examination,
and accorded the veteran a personal hearing.

2. The veteran�s back symptoms are attributable to
disabilities for which service connection is not in
effect..

CONCLUSION OF LAW

The schedular criteria for a compensable rating for
lumbosacral strain have not been met.  38 U.S.C.A. �� 1155,
5107 (West 1991); 38 C.F.R. �� 4.7, 4.10, 4.71a, DC 5295
(1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual History.

The veteran asserted that while in service he injured his
back during a parachute jump in 1942.  There were no service
records of treatment for a back injury or back disorder.
Subsequently, he was medically discharged from the military
for an unrelated disability.

VA examined the veteran in April 1947.  A diagnosis of
chronic lumbosacral strain was given.  Service connection was
established, and a 10 percent evaluation assigned by way of a
May 1947 rating action.

The veteran was examined by John A. Siegling, M.D., in March
1949.  The veteran appeared to be without pain, and there was
no restricted motion of the lumbar spine, or arthritis
detected by x-ray.

In an April 1949 rating action, a noncompensable evaluation
was assigned and has remained in effect until the present
date.

VA treatment records, dated in October and November 1992,
from the VAMC in Charleston, South Carolina, show that the
veteran was diagnosed with left foot drop and herniated L4-5
disc by myelogram.

The 1992 VA hospital reports document that the veteran had a
50-year history of low back pain due to an inservice
parachute jump.  It is noted that he had recently injured his
back in a gardening accident.  Thereafter, he had increased
left foot pain, paresthesia, and debilitating left foot drop.
A CT Scan of the pelvis revealed disc herniation at the L4-5
and L5-S1.  Physical examination demonstrated that there was
a decrease in perception of light touch and pin prick over
the S4 and S5 distribution.  A motor examination revealed
normal bulk and tone with a left foot drop.  There was 0/5
muscle strength in left dorsiflexion and introversion.  In
November 1992, a left hemilaminectomy and diskectomy were
performed.

In the June 1993 hearing, the veteran provided an overview of
how his back injury was sustained.  He claimed that the back
pain persisted since service and had gotten progressively
worse over the years.  The veteran testified that he did not
receive treatment for his back disorder until the 1950s when
he went to Dr. Siegling.  Generally, he treated the condition
on his own with rest and pain medication.  The most recent
back injury that led to the back surgery occurred when the
veteran attempted to pick up a 50-pound bag of fertilizer.
The veteran claimed that the pain worsened to the point that
he sought treatment at the VAMC.  It was then that he
received the herniated disc diagnosis.  Following surgery,
the veteran had limited use of his left leg that required a
foot brace, and he could no longer walk swiftly.  His spouse
corroborated much of the veteran�s testimony.

VA examined the veteran in January 1996.  An overview of his
inservice injury and post service treatment was provided.
After service, the veteran went into business for himself.
However, recurrent episodes of instability and back pain
forced him to terminate his job.  The veteran related that
approximately 4-years ago he developed a left foot drop that
was caused by a herniated lumbar disc.  Surgery was performed
to correct this condition.  He had some improvement in the
weakness of the left lower extremity and back pain, but he
had a fixed left foot drop.  Subjectively, the veteran
complained of chronic moderate low back pain that limited his
ability to perform work-related tasks.  Also, he continued to
have weakness in the left thigh along with the left foot drop
and burning in the plantar aspect of the left foot. Objective
findings revealed that the veteran walked with an antalgic
gait due to the left foot drop.  Examination of the lumbar
spine showed that there was a healed 5-cm midline scar
overlying the L5 area.  There was mild tenderness to
palpation along the midline of his low back.  There was no
significant muscular atrophy or paraspinal tenderness.  There
was no fixed deformity of the spine.  There was marked left
calf atrophy and left foot drop.  Range of motion studies
revealed forward flexion to 70 degrees with discomfort,
backward extension to 15 degrees, left lateral flexion to 20
degrees, right lateral flexion to 20 degrees, and rotation to
15 degrees bilaterally.  Motor examination revealed that
there was normal motor strength in the entire right lower
extremity.  There was normal motor strength in the left hip,
4/5 of leg flexion, 4/5 of leg extension, 4/5 of plantar
flexion, 2/5 of dorsiflexion, and 2/5 of eversion of the
ankle.  Deep tendon reflexes were 2/4 on the right, 2/4 on
the left (knee jerks), and 0/4 on the left (ankle jerks).
Results of the sensory examination showed a marked decrease
in light touch sensation in the distribution of the L5-S1
nerves on the left.  He had a left foot drop with marked
atrophy of the left calf due to the L5-S1 nerve root damage.
It was the examiner�s impression that the veteran had chronic
mechanical low back pain, left foot drop due to the L5-S1
nerve root injury, and chronic mild neurogenic pain in the
plantar aspect of the left foot due to the S1 nerve root
damage.

The Board remanded the claim in November 1997 to determine
whether the veteran�s current complaints were the result of
the nonservice-connected disc condition or his service-
connected lumbosacral strain.

Another VA orthopedic examination was conducted in December
1997.  A review of the veteran�s claims folder had been
undertaken.  The examination report indicated that the
veteran had been diagnosed with lumbosacral strain in June
1949.  The veteran indicated that he had hip and back pain
over the years.  Also, in 1992, he developed lower extremity
pain, paresthesia, and left foot drop.  His present
complaints were of low back pain approximately three times a
week and constant left foot drop.  The level of pain was
approximately the same in the low back and left foot.
However, it worsened with increased activity.  A review of
prior x-rays and a CT scan showed disc herniation at L4-5
with impingement on nerve roots and degenerative disc
changes.  The most recent radiograph report showed
degenerative disc disease at L4-5 and L5-S1 with spondylosis.
There was no evidence of spondylolisthesis, fracture, or
dislocation.  An arterial vascular calcification was present.
On physical examination, it was observed that the veteran had
an altered gait secondary to his left foot drop.  Range of
motion studies of the lumbar spine revealed flexion from 0 to
90 degrees with severe pain from 45 to 95 degrees that
prevented the veteran from bending more than 45 degrees.
There was some loss of lateral motion, but he was able to
bend laterally to 40 degrees.  Pain was exhibited at 20 to 40
degrees, and he was unable to bend further than 20 degrees.
During a flare-up, range of motion was decreased by
approximately 50 percent.  Straight leg raising was positive
on the left.  He had noted atrophy of the left leg
particularly in the anterior, lateral, and posterior portions
and compartments of the tibia.  Muscle strength was 2/5 in
the anterior tibialis and extensor hallucis longus of the
left side, and 5/5 on the right.  Hip muscle strength in the
hip flexors and hip extensors was normal and normal in the
entire right lower extremity.  Reflexes were 2+ on the right,
but the left was not responsive.  Reflexes were 1+ in the
left knee.  The veteran had decreased sensation on the left
side of the L5-S1 distribution, but there was normal
sensation on the right.  Diagnoses of disc disease and
degenerative joint changes of the lumbar spine were given.
The examiner stated that the veteran�s present symptoms of
left foot drop and low back pain were the result of the
degenerative changes in the lumbar spine.  Based on the late
onset of disc disease, occurring 50 years after service, the
examiner concluded that there was no correlation between the
lumbosacral strain and the disc disease.  Moreover, the
chronic neurological compromise and left foot drop were due
to nerve damage likely from the herniated disc.

II.  Legal Analysis.

The first responsibility of a claimant is to present a well-
grounded claim.  38 U.S.C.A. � 5107(a) (West 1991).  A claim
for an increased evaluation is well grounded if the claimant
asserts that a condition for which service connection has
been granted has worsened.  Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992).  In this case, the veteran has asserted
that his service-connected back disability has worsened
greater than currently evaluated, and he has thus stated a
well-grounded claim.

When a claimant has presented a well-grounded claim, the VA
has a duty to assist in the development of facts pertaining
to the claim.  38 U.S.C.A. � 5107(a) (West 1991); 38 C.F.R.
� 3.103(a) (1997).  In this case, the RO has obtained
treatment records, accorded the veteran an examination, and
provided him the opportunity to testify at a personal
hearing, thereby satisfying the duty to assist.

Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. � 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. � 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work.  38 C.F.R. � 4.7 provides
that, where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation is to be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  Otherwise, the lower
rating is to be assigned.  The VA has a duty to acknowledge
and consider all regulations that are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
Although regulations require that, in evaluating a given
disability, the disability be viewed in relation to its whole
history, the present level of disability is of primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The back disability is evaluated under Diagnostic Code
(herein after �DC�) 5295 of VA�s Schedule for Rating
Disabilities, 38 C.F.R. Part 4.  The DC provides a
noncompensable evaluation for lumbosacral strain where there
are only slight subjective symptoms.  A 10 percent evaluation
requires characteristic pain on motion.  A 20 percent
evaluation requires muscle spasm on extreme forward bending
and unilateral loss of lateral spine motion in a standing
position.  A 40 percent evaluation requires severe
lumbosacral strain manifested by listing of the whole spine
to the opposite side, a positive Goldthwait�s sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritis changes, or narrowing or
irregularity of the joint space.  A 40 percent evaluation is
also warranted if only some of these manifestations are
present if there is also abnormal mobility on forced motion.

Pursuant to DC 5292, a slight limitation of motion of the
lumbar segment of the spine warrants a 10 percent evaluation.
A moderate limitation of motion of the lumbar segment of the
spine warrants a 20 percent evaluation.  A 40 percent
evaluation requires a severe limitation of motion.

DC 5293 provides that a 10 percent evaluation is warranted
for mild intervertebral disc syndrome.  A 20 percent
evaluation requires moderate intervertebral disc syndrome
with recurring attacks.  A 40 percent evaluation requires
severe intervertebral disc syndrome with recurring attacks
and intermittent relief.  A 60 percent evaluation requires
pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to
site of diseased disc with little intermittent relief.

The Board finds that the manifestations of the service-
connected lumbosacral strain more closely resemble the
criteria for the current noncompensable evaluation.
According to the December 1997 VA examination, the veteran�s
symptoms include back pain, restricted motion due to pain,
degenerative joint changes at L4-5 and L5-S1 with
spondylosis, disc disease, neurological and sensory deficits,
and left foot drop.  However, these symptoms are due to
degenerative joint changes and disc

disease that are not service-connected.  There has been no
showing of symptoms attributable to the service-connected low
back strain.

There is no point in evaluating the symptoms under the
various other DCs generally applicable to low back
disabilities, because the current symptoms are related to
nonservice-connected disability and their consideration in
rating a service-connected disability is prohibited.
38 C.F.R. � 4.14.

There is no medical evidence of significant symptoms between
the 1949 report of Dr. Siegling (no pain, no limitation of
motion, no arthritis) and the 1992 onset of nonservice-
connected degenerative disease.  The symptoms arising in 1992
and persisting to a lesser degree after surgery are shown by
the medical evidence to be the result of nonservice-connected
intercurrent injury and disease, and may not be considered in
rating the service-connected disability.  The veteran�s
testimony as to pain during that long period, in the absence
of medical evidence, amounts to a showing of �subjective
symptoms,� which warrant a 0 percent rating under DC 5295.
Finally, the fact that the veteran has pain in the spinal
muscles does not change the analysis, because the medical
evidence indicates that his back pain (which would include
pain in the spinal muscles) is due to the nonservice-
connected condition, not the service-connected strain.

The preponderance of the evidence establishes that the
veteran is not entitled to a compensable rating for the
service-connected lumbosacral strain.  Thus, the benefit-of-
the-doubt doctrine is inapplicable, and his claim for an
increased rating must be denied.    38 U.S.C.A. �� 1155, 5107
(West 1991); 38 C.F.R. �� 4.40, 4.45, 4.71, 4.71a, DC 5295
(1997); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to a compensable evaluation for service-connected
lumbosacral strain is denied.

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

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), 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 -


series: legacy

judge_norm: H N SCHWARTZ

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 9822000
Decision Date: 07/21/98    Archive Date: 08/03/98

DOCKET NO.  96-14 373	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana

THE ISSUE

Entitlement to an increased disability evaluation for peptic
ulcer disease with highly selective parietal cell vagotomy
residuals, currently evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The veteran and the veteran�s wife

ATTORNEY FOR THE BOARD

John T. Hutcheson, Counsel

INTRODUCTION

The veteran had active service from August 1963 to September
1967.  This matter came before the Board of Veterans' Appeals
(Board) on appeal from a December 1994 rating decision of the
New Orleans, Louisiana, Regional Office (RO) which, in
pertinent part, denied an increased disability evaluation for
the veteran�s service-connected peptic ulcer disease with
highly selective parietal cell vagotomy residuals.  In
December 1997, the veteran was afforded a hearing before a
member of the Board sitting at the RO.  In June 1998, the
veteran was informed that the member of the Board who
conducted the December 1997 hearing was unable to participate
further in his appeal due to an extended illness and he
therefore had the right to an additional hearing before a
different member of the Board.  In July 1998, the veteran
informed the Board that he did not desire an additional
hearing.  The veteran has been represented throughout this
appeal by the Disabled American Veterans.

The veteran may have submitted a September 1997 claim for an
increased disability evaluation for his service-connected
chronic low back strain.  It appears that the RO has not had
an opportunity to act upon the informal claim.  Absent an
adjudication, a notice of disagreement, a statement of the
case, and a substantive appeal, the Board does not have
jurisdiction over the issue.  Rowell v. Principi, 4 Vet. App.
9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993); Black v.
Brown, 10 Vet. App. 279, 284 (1997); Shockley v. West, No.
96-829 (U.S. Vet. App. May 8, 1998).  Jurisdiction does
matter and it is not �harmless� when the Department of
Veterans Affairs (VA) fails to consider threshold
jurisdictional issues during the claim adjudication process.
An application which is not in accord with statute shall not
be entertained.  38 U.S.C.A. � 7108 (West 1991).
Furthermore, this Board member cannot have jurisdiction of
the issue.  38 C.F.R. � 19.13 (1997).  The United States
Court of Veterans Appeals (Court) has noted that:
Furthermore, 38 U.S.C.A. � 7105 (West
1991) establishes a series of very
specific, sequential, procedural steps
that must be carried out by a claimant
and the RO or other "agency of original
jurisdiction" (AOJ) (see Machado v.
Derwinski, 928 F.2d 389, 391 (Fed. Cir.
1991)) before a claimant may secure
"appellate review" by the BVA.
Subsection (a) of that section
establishes the basic framework for the
appellate process, as follows:
�Appellate review will be initiated by a
notice of disagreement [(NOD)] and
completed by a substantive appeal after a
statement of the case is furnished as
prescribed in this section.�  Bernard v.
Brown, 4 Vet. App. 384 (1994).

All steps required for jurisdiction have not been satisfied.
More recently, the Court again established that jurisdiction
counts.  Specifically the Court could not remand a matter
over which it has no jurisdiction.  Hazan v. Gober, No. 94-
557 (U.S. Vet. App. Nov. 14, 1997).  Therefore, the issue is
referred to the RO for appropriate action.  If the veteran
wishes to appeal from the decision, he has an obligation to
file a timely notice of disagreement and a timely substantive
appeal following the issuance of the statement of the case.
38 C.F.R. � 20.200 (1997).

REMAND

The veteran asserts that the record supports assignment of an
increased evaluation for his gastrointestinal disability as
that disorder is productive of significant physical and
occupational impairment.  At the December 1997 hearing on
appeal, the veteran testified that his service-connected
gastrointestinal disability had increased in severity.  He
reported that he had been seen for gastrointestinal
complaints at the Alexandria, Louisiana, VA Medical Center in
July 1997.  Clinical documentation of the reported treatment
has not been incorporated into the record.  In reviewing a
similar factual scenario, the Court has held that the VA
should obtain all relevant VA and private treatment records
which could potentially be helpful in resolving the veteran's
claim.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990).

In reviewing the claims file, the Board observes that the
veteran was last afforded a VA examination for compensation
purposes in November 1992.  The Court has held that the VA's
statutory duty to assist the veteran includes the duty to
conduct a thorough and contemporaneous examination so that
the evaluation of the claimed disability will be a fully
informed one.  Green v. Derwinski, 1 Vet. App. 121, 124
(1991).  Accordingly, this case is REMANDED for the following
action:

1.  The RO should contact the veteran and
request that he provide information as to
all treatment of his gastrointestinal
disability including the names and
addresses of all treating physicians.
Upon receipt of the requested information
and the appropriate releases, the RO
should contact the identified health care
providers and request that they forward
copies of all available clinical
documentation pertaining to treatment of
the veteran for incorporation into the
record.

2.  The RO should request that copies of
all VA clinical documentation pertaining
to treatment of the veteran after 1993,
including that provided at the
Alexandria, Louisiana, VA Medical Center
in July 1997, be forwarded for
incorporation into the record.

3.  The RO should then schedule the
veteran for an examination for
compensation purposes which is
sufficiently broad enough to accurately
determine the current nature and severity
of his peptic ulcer disease with highly
selective parietal cell vagotomy
residuals.  All indicated tests and
studies should be accomplished and the
findings then reported in detail.  The
claims file should be made available to
the examiner prior to the examination.
The examination report should reflect
that such a review was conducted.

4.  While representing the VA before the
Court, the General Counsel of the VA has
noted that the RO has duties.  Pursuant
to 38 C.F.R. � 3.655 (1997), when the
veteran without good cause fails to
report for a scheduled examination, his
claim for increased disability
compensation will be denied.  However,
the Secretary of the VA must show a lack
of good cause for the veteran�s failure
to report.  Further, the VA has a duty to
fully inform the veteran of the
consequences of the failure to undergo
the scheduled examination.  Reference was
made the Veterans Benefits
Administration�s ADJUDICATION PROCEDURE
MANUAL, M21-1, Part IV, paragraph
28.09(b) (3).  The RO must comply with
all notification requirements regarding
the duty to report and the failure to
report for examination.

The veteran�s claim must be afforded expeditious treatment by
the RO.  The law requires that all claims that are remanded
by the Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See the Veterans� Benefits Improvement Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994) and 38
U.S.C.A. � 5101 (West 1991 and Supp. 1998) (Historical and
Statutory Notes).  In addition, the Veterans Benefits
Administration�s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO is 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.

Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration if appropriate.  The purpose of this REMAND is
to allow for further development of the record.  No inference
should be drawn from it regarding the final disposition of
the veteran's claim.

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board is appealable to the Court.  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) (1997).
- 2 -


judge_norm: JANE E SHARP

text: 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. 1998) (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

text:
Citation Nr: 9824000
Decision Date: 08/07/98    Archive Date: 07/27/01

DOCKET NO.  97-18 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUES

1.  Entitlement to nonservice-connected pension benefits.

2.  Whether new and material evidence sufficient to warrant
reopening a claim of entitlement to service connection for a
back disorder has been received.

WITNESSES AT HEARING ON APPEAL

The veteran and a friend

ATTORNEY FOR THE BOARD

J.M. Daley, Associate Counsel

INTRODUCTION

The veteran had active military service from October 1959 to
October 1962, with subsequent Reserve service.

These matters are before the Board of Veterans' Appeals
(Board) on appeal from the Reno, Nevada, Department of
Veterans Affairs (VA) Regional Office (RO).  The issue of
whether new and material evidence sufficient to warrant
reopening a claim of entitlement to service connection for a
back disorder has been received will be discussed in the
remand portion of this decision.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to VA pension
benefits as a result of his military service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), 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 because the veteran does not
meet the wartime service requirement to establish eligibility
for VA pension benefits, he is ineligible for VA pension
benefits under the law administered by the VA.

FINDING OF FACT

The veteran had active, peacetime military service from
October 28, 1959 to October 22, 1962.  He did not serve in
the Republic of Vietnam.

CONCLUSION OF LAW

The wartime service requirement for establishing eligibility
to receive nonservice-connected VA pension benefits has not
been met.  38 U.S.C.A. �� 101(29), 101(21), 1501(4), 1521,
5107 (West 1991); 38 C.F.R. �� 3.2, 3.3 (1997).

REASONS AND BASES FOR FINDING AND CONCLUSION

According to his DD Form 214, the veteran had active service
from October 28, 1959 to October 22, 1962, with overseas
service in Europe.

An award of nonservice-connected pension benefits is governed
by statutes promulgated by Congress, including, principally,
38 U.S.C.A. � 1521(a).  That statute provides that pension
will be paid to each veteran of a period of war who meets the
service requirements of subsection (j) of the statute and who
is permanently and totally disabled from a nonservice-
connected disability which is not the result of his own
willful misconduct.  Under subsection (j), a veteran meets
the service requirements for pension if he served in the
active military, naval or air service: (1) for 90 days or
more during a period of war; or (2) during a period of war
and was discharged or released from such service for a
service-connected disability; or (3) for a period of 90
consecutive days or more and such period began or ended
during a period of war, or (4) for an aggregate of 90 days or
more in two or more separate periods of service during more
than one period of war.  38 U.S.C.A. � 1521(a)(j);
38 C.F.R. � 3.3(a)(3).

To make its intent clear, Congress has also provided a
definition of "period of war."  For VA pension benefit
purposes, the term "period of war" means the Mexican border
period, World War I, World War II, the Korean conflict, the
Vietnam era, the Persian Gulf War, and the period beginning
on the date of any future declaration of war by the Congress
and ending on the date prescribed by Presidential
proclamation or concurrent resolution of the Congress.  See
38 U.S.C.A. 1501(4).  World War II has been determined to
comprise the period beginning on December 7, 1942, and ending
on December 31, 1946.  If a veteran was in service on
December 31, 1946, then continuous service before July 26,
1947, is also considered World War II service.  The Korean
conflict means the period beginning on June 27, 1950, and
ending on January 31, 1955.  See 38 U.S.C.A. � 101(8), (9);
38 C.F.R. � 3.2(d), (e).  The Vietnam Era means the period
beginning on August 5, 1964, and ending on May 7, 1975.  The
Vietnam era extends from February 28, 1961, through May 7,
1975, for veterans who actually served in Vietnam during that
period.  38 U.S.C.A. �101(29)(b); 38 C.F.R. � 3.2(f) (1997).

The United States Court of Veterans Appeals has held that,
"service department findings are binding on the VA for
purposes of establishing service in the U.S. Armed Forces."
Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also
Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).  Since the
veteran did not serve in the Republic of Vietnam he had only
peacetime service and does not meet the basic eligibility
requirements for establishing entitlement to VA nonservice-
connected pension benefits.  There is no authority in the law
for an award of pension benefits without such service.  The
claim must therefore be denied on the basis of lack of basic
eligibility for VA pension benefits.  See Sabonis v. Brown, 6
Vet. App. 426 (1994).

ORDER

Eligibility for VA nonservice-connected pension benefits is
not established.

REMAND

Filed near the top of the claims file are numerous records
that include both private and VA medical records.  It is
unclear whether such were considered in the supplemental
statement of the case issued in September 1997.  That
evidence includes some records that are not duplicative of
evidence previously considered by the RO.

The Board notes that the veteran, although advised of the
laws and regulations governing finality in the supplemental
statement of the case issued in September 1997, has not been
provided with notice of laws and regulations pertinent to
claims of service connection; the statement of the case
issued in April 1997 contained laws and regulations pertinent
to timeliness of appeals and not to service connection.  This
procedural deficit must be remedied.  See 38 C.F.R. � 19.9
(1997).

Accordingly, the case is returned for the following:

The RO should review any evidence in the
claims file not previously considered and
re-adjudicate the veteran's claim of
service connection for a back disorder.
If the benefit sought remains denied, the
veteran should be furnished a
supplemental statement of the case, that
includes laws and regulations pertinent
to service connection and finality, and
recitation of the evidence considered.
The veteran should be given the
opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.

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. 1998) (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.

	JANE E. SHARP
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1998), 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
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.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board's decision, because a 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)
(1997).


judge_norm: RONALD R BOSCH

disposition: denied

condition: knee

text: This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (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. Se

text:
Citation Nr: 9825000
Decision Date: 08/20/98    Archive Date: 07/27/01

DOCKET NO.  94-43 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico

THE ISSUES

1.  Entitlement to service connection for a right knee
disorder.

2.  Entitlement to service connection for a low back
disorder.

3.  Entitlement to service connection for a left shoulder
disorder.

4.  Entitlement to service connection for an ear disorder.

5.  Entitlement to service connection for residuals of a
broken nose.

6.  Entitlement to service connection for a chest wall
disorder manifested by pain.

7.  Entitlement to service connection for residuals of a
fracture, right temporomandibular joint (TMJ).

8.  Whether new and material evidence has been submitted to
reopen the claim for entitlement to service connection for a
right shoulder disorder.

9.  Entitlement to service connection for sinusitis.

10.  Entitlement to service connection for a throat disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

Alice A. Booher, Counsel

INTRODUCTION

The veteran had active service from February 1975 to July
1983.

Service connection is in effect for cervical myositis with
left radiculopathy, currently evaluated as 30 percent
disabling; for migraine headaches secondary to the cervical
myositis, currently evaluated as 10 percent disabling; and
varicose veins of the right leg, evaluated as noncompensably
disabling.

This appeal to the Board of Veterans' Appeals (the Board) is
from rating actions taken by the Department of Veterans'
Affairs (VA) Regional Office (RO) in Albuquerque.

Testimony was provided at a hearing held before a Hearing
Officer in February 1996, of which a transcript is of record.

During the course of the current appeal, the veteran withdrew
the issue of entitlement to service connection for
hemorrhoids.

The veteran has also clarified that any current appellate
issue with regard to a right shoulder is not pursuant to 38
U.S.C.A. � 1151.  It is further noted that during the course
of the current appeal, it was agreed that any claim the
veteran may have pending or believe he has with regard to
injury including related to his head, shoulder or elsewhere
in connection with VA employment or training, etc., is not
the subject of the current appeal.

The issue with regard to service connection for tinnitus was
also more recently raised and is not part of the current
appeal.

Those appellate questions identified as issues ## 2, 3, 6 and
8 will be addressed in the remand portion of this decision.

CONTENTIONS OF APPELLANT ON APPEAL

In substance, the veteran contends that his current problems
are directly due to inservice injuries or symptoms and
service connection is in order.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files.  Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran's claims for
service connection for a right knee disorder, for an ear
disorder, for residuals of a broken nose, for residuals of a
fracture of the right TMJ, for sinusitis, and for a throat
disorder, are not well grounded.

FINDING OF FACT

The claims for service connection for a right knee disorder,
for an ear disorder, for residuals of a broken nose, for
residuals of a fractured right TMJ, for sinusitis and for a
throat disorder, are not supported by cognizable evidence
showing that the claims are plausible or capable of
substantiation.

CONCLUSION OF LAW

The claims for service connection for a right knee disorder,
for an ear disorder, for residuals of a broken nose, for
residuals of a fractured right TMJ, for sinusitis and for a
throat disorder, are not well grounded.  38 U.S.C.A. � 5107
(West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

In Boeck v. Brown, 6 Vet. App. 14 (1993), the United States
Court of Veterans Appeals (Court) held that

A(n appellant) claiming entitlement to
Department of Veterans Affairs (VA)
benefits has the burden of submitting
evidence sufficient to justify a belief
by a fair and impartial individual that
the claim is well grounded.  See 38
U.S.C.A. � 5107, and see Tirpak v.
Derwinski, 2 Vet. App. 609, 610-11
(l992).

If an appellant has not presented a well-grounded claim, then
the appeal must fail and there is no duty to assist him/her
further in the development of the claim.  38 U.S.C.A. �
5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1992).

Case law provides that although a claim need not be
conclusive to be well-grounded, it must be accompanied by
evidence.  A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible.  See Dixon v. Derwinski, 3 Vet. App.
261, 262 (1992).

The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim.  Where the issue is factual in
nature, such as whether an incident or injury occurred in
service, competent lay testimony, including an appellant's
testimony, may constitute sufficient evidence to establish a
well-grounded claim under 38 U.S.C.A. � 5107(a).  See
Cartright v. Derwinski, 2 Vet. App. 24 (1991).

However, where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is "plausible" or "possible" is
required.  See Murphy, op. cit. at 81 (1990).  A claimant
would not meet this burden imposed by section 5107(a) merely
by presenting lay testimony because lay persons are not
competent to offer medical opinions.  Espiritu v. Derwinski,
2 Vet. App. 492 (1992).  Consequently, lay assertions of
medical causation cannot constitute evidence to render a
claim well-grounded under section 5107(a).

If the claim is not well-grounded, the claimant cannot invoke
VA's duty to assist in the development of the claim.  See 38
U.S.C.A. � 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141,
144 (1992).

Service connection may be established for a disability
incurred in or aggravated by active service.  38 U.S.C.A.
�� 1110, 1131 (West 1991).

In the case of osteoarthritis, service connection may also be
granted under pertinent regulations if present to a
compensable degree within a year of service separation.
38 U.S.C.A. �� 1101, 1112, 1113 (West 1991 & Supp. 1998);
38 C.F.R. �� 3.307, 3.309 (1997).

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) (1997).

The Court has clearly indicated that this is not intended to
limit a grant of service connection to those disabilities
which were present in service or within a year thereafter,
but also contemplates a chronic disability for which there is
a credible medical opinion that there is a link between
current disability and the in-service injury or disease.
See, i.e., Caluza v. Brown, op. cit..

The Court further concluded that "satisfactory" evidence
meant "credible" evidence as characterized in Caluza,
supra, aff'd, 78 F.3d 604 (Fed.Cir. 1996); see also Collette
v. Brown, 82 F.3d 389 (Fed.Cir. 1996).

The Court has also held that a determination with regard to
entitlement to service connection must be made upon a review
of the entire evidentiary record including thorough and
comprehensive examinations that are representative of the
entire clinical picture.  Brown v. Brown, 5 Vet. App. 413
(1993).

In this, and in other cases, only independent medical
evidence may be considered to support Board findings.  If the
medical evidence of record is insufficient, or, in the
opinion of the Board, of doubtful weight or credibility, the
Board is always free to supplement the record by seeking an
advisory opinion, ordering a medical examination or citing
recognized medical treatises in its decisions that clearly
support its ultimate conclusions.  However, it is not free to
substitute its own judgment for that of such an expert.  See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

Moreover, it remains the duty of the Board as the fact finder
to determine credibility of the testimony and other lay
evidence.  See Culver v. Derwinski, 3 Vet. App. 292, 297
(1992).

Application of the criteria under 38 U.S.C.A. � 1154(b) (West
1991) with regard to circumstances of service, etc., does not
absolve a claimant from submitting a well-grounded claim for
service connection.  See Beausoleil v. Brown, 8 Vet.
App. 459, 464 (1996).

In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion.  King v.
Brown, 5 Vet. App. 19, 21 (1993).

A well-grounded claim requires three elements: (1) medical
evidence of a current disability; (2) lay or medical evidence
of a disease or injury in service; and (3) medical evidence
of a link between the current disability and the in-service
injury or disease.  Caluza v. Brown, 7 Vet. App. 498 (1995).

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).  See also Caluza, Epps and Grottveit,
op. cit.; and Heuer v. Brown, 7 Vet. App. 379, 384 (1995)
with regard to when the determinative issue is a medical
determination, competent medical evidence to the effect that
the claim is plausible is required.

Lay persons are not competent to render testimony concerning
medical causation.  See Grottveit v. Brown, 5 Vet. App. 91,
93 (1993).

Service connection may be established through competent lay
evidence, not medical records alone.  Horowitz, op. cit.  But
a lay witness is not capable of offering evidence requiring
medical knowledge.  Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992).

The Board has the duty to assess the credibility and weight
to be given the evidence.  Wilson v. Derwinski, 2 Vet.
App. 614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991), reconsideration denied per curiam,
1 Vet. App. 406 (1991)).

The Court has held that where the determinative issue in a
veteran's service connection claim involves medical etiology
or medical diagnosis, competent medical evidence that the
claim is plausible or possible is required for the claim to
be well grounded.  See Savage v. Gober, 10 Vet. App. 488
(1997).

In Savage, citing the regulatory provisions of 38 C.F.R.
�� 3.303(b), 3.307(a)(3) and 3.309(a), the Court held that
the veteran's claim therein failed to meet the criteria for a
well grounded claim for the (in that case, back and hip)
disorder based on chronicity of such condition, despite
evidence that the veteran was treated for a back condition
during service; the veteran failed to present medical
evidence demonstrating that his back and hip conditions were
chronic while in service or

during statutory presumptive period.  Savage held that the
veteran's testimony to the contrary was an inadequate basis
to establish a well grounded claim.  This is comparable to
several of the disabilities herein claimed for which the
veteran had one type of care or another in service, but from
which there were no chronic residuals in or since service as
evidence by the record or competent medical opinion.

Factual background and Analysis

Service medical records show repeated instances of complaints
of sore throat and diagnoses of upper respiratory infection,
pharyngitis and rhinitis, from which there were no subsequent
residuals.  The veteran also had repeated complaints of sore
throat and other symptoms said to be associated with acute
respiratory ailments but without identified or diagnosed
chronic residuals.

The veteran was noted on several occasions to be a cigarette
smoker and he had some throat complaints such as scratchiness
and a "lump in his throat" in association therewith.  In
1979, on one such occasion, his uvula was red and swollen
indicating inflammation and irritation; antibiotics were
given.  On another occasion, he said he had a cyst in his
throat; it was noted that he continued to smoke.

On any number of occasions, the veteran had acute bouts of
cough and upper respiratory complaints, a few times with
related ear complaints of stuffiness or pain, including what
was diagnosed on one occasion as otitis, and on another as
involving some gland swelling behind the ear; on other
occasions he was said to have colds or pharyngitis, each
incidence of which resolved with conservative care and was
entirely without chronic residuals.

On any number of occasions in service the veteran complained
of headaches.  No definitive bases for the headaches was ever
identified other than related to cervical disability.  [It is
noted that service connection is now in effect for headaches
secondary to the cervical myositis].

In November 1975, the veteran complained of pain in the right
knee which he said started when he was struck by a vehicle 2-
3 months before.  He had not been treated for the knee
problems.  On examination, he complained of pain on both
sides of the knee.  Examination was negative and he was given
an Ace wrap for the knee.

In December 1975, the clinical report noted that the veteran
had complained that twice he had experienced a blow to his
nose and had been kicked in the "jar" (sic, presumably jaw).
The examiner noted the presence of some retained blood in the
nostrils but the nose appeared within normal limits.  Facial
X-rays were negative.  He was told to use ice for the nose as
well as pain medications.

In February and again in October 1978, the veteran had a
respiratory infection and complained that his sinus area was
clogged and congested.  No positive clinical findings were
identified of any sinus disorder.

On a physical examination conducted in August 1980, the
veteran said that he had a history of pain and popping in the
right knee without swelling; no untoward clinical findings
were recorded.

In the Fall of 1982, the veteran was apparently again struck
in the face, and complained of pain in the right TMJ area and
his nose.  Examination was first done both in the medical
clinic and then later again at the dental facility.  Although
it was initially thought that he might have fracture(s),
clinical findings and X-rays were negative.  Diagnosis was
made of right TMJ "hemarthrosis" for which no treatment was
required.

In October 1982, the veteran complained of headache and sinus
pain.  It was suggested that he might have sinus infection;
however, this was not confirmed and sinus X-rays were
negative.  On several occasions, he was complaining of being
dizzy in addition to having headaches and eye discomfort, and
the possibility of labyrinthitis was suggested but never
confirmed.

In February 1983 [as shown in an original service medical
document received at a recent RO hearing], the veteran
complained of throat discomfort; there was some evidence of
injection without exudate and pharyngitis was diagnosed.  He
was told to continue with his medications including Cepacol.

None of the foregoing discussed disorders was noted to have
residuals shown on examination at separation from service in
1983.

On VA examinations in 1983 and in numerous VA and private
treatment records since service, there has been no clinical
evidence of a chronic right knee disorder, an ear disorder,
residuals of broken nose, right TMJ disorder, sinusitis or
throat cyst or medical opinion associating any such disorders
with anything of service origin.  On a dental questionnaire
filled out in August 1983, the veteran said that he had a
growth in his throat caused by smoking.

Although sinus problems were thought to be a possible reason
for headache and related discomfort on VA examinations and
evaluations in 1985, 1986 and 1987, examinations and sinus X-
rays on each occasion were negative as was a head
computerized axial tomographic (CT) scan in 1985.

On VA examinations in 1991, the veteran gave a history of
depression and other symptoms which he said began at about
the time he had been kicked in the right jaw in service.  The
examiner opined that the depression might have been
aggravated by the (alleged) TMJ fracture; however, no
evidence is of record that the examiner found any residuals
of such a fracture, and the diagnosis was based on his
history alone.

On X-rays in 1993, after he had complained of pain, locking
and buckling in the right knee, there appeared to be a bone
island in the lateral femoral condyle distally, but no other
sign of any right knee disorder including effusion.

The veteran and his spouse presented testimony in support of
the veteran's claims for service connection for the
disabilities at issue before a regional office hearing
officer in February 1996.  The testimony was essentially
consistent with the contentions presented on appeal.

Analysis

In this case, the veteran's service records and some of his
statements show several episodes of injury or purported
disease in service, i.e., involving his nose and TMJ; and
service records reflect isolated incidents of colds,
pharyngitis, right knee pain, etc.  Thus, one of the three
pivotal facets of a well grounded claim has been established,
namely lay or medical evidence of a disease or injury in
service.  However, this is just one of three elements which
must be met for a well grounded claim.

In order to establish a well grounded claim, there are no
exceptions to the mandate that all three pivotal aspects must
be met.  There must also be evidence of chronic
symptomatology after service, and there must be medical
evidence of a link between the current disability and the in-
service injury or disease.  In both instances this claim is
wanting with regard to these disabilities.

Collaterally, the Board would note that there is a total lack
of medical evidence to associate any inservice injury or
disease either with a chronic problem in service and/or with
current residual disability.

The Court has held that in an instance such as this when the
question is solely a medical one, i.e., whether the current
symptoms are a residual of the inservice injury, competent
medical evidence and opinion are mandated.  That is absent in
this case.

It is clear from the above cited regulations and Court
opinions that the lay statements alone, no matter how
sincerely felt and expressed, are simply inadequate to
provide such a foundation.

Absent fulfillment of all three criteria for a well grounded
claim with regard to the issue of service connection for
residuals of various claimed disabilities and injuries, the
Board has no alternative but to find the claims not well
grounded.

In light of the implausibility of the veteran's claims and
the failure to meet his initial burden in the adjudication
process, the Board concludes as did the RO that his claims
for service connection for disorders involving the right
knee, ears, residuals of a broken nose and TMJ fracture,
sinus and throat disabilities are not well grounded and must
be denied.

During the pendency of the appeal, the veteran was
specifically informed of the evidence necessary to complete
his case and there is apparently nothing more of which he is
aware that might provide the basis for well grounding his
claims.  McKnight v. Gober, 131 F.3d 1483 (Fed.Cir. 1997);
Epps v. Gober, 126 F. 3d 1464 (Fed.Cir. 1997).

ORDER

The veteran not having submitted well grounded claims for
service connection for a right knee disorder, for an ear
disorder, for residuals of a broken nose, for residuals of a
fracture, right TMJ, for sinusitis and for a throat disorder,
the appeal in that regard is denied.

REMAND

This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, � 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
� 5101 (West Supp. 1998) (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.

The veteran already has service connection for disorders
involving cervical myositis with left upper extremity
radiation, and secondary headaches.  The rating of those
disabilities is not, per se, a current issue.  However, the
exact nature and physical, and to an extent, anatomical,
involvement of those disabilities plays a role in the
equitable assessment of what other problems may or may not be
service connected at this time.  It becomes particularly
complicated in the context of distinguishing between upper
extremity radiculopathy and/or additional right and left
shoulder disabilities.

In that regard, the Board notes that throughout service
medical records, the veteran's cervical problems were
associated with radiating and symptoms not only into the neck
and upward into the head, but also downward into one or both
upper extremities and particularly both left and right
shoulders.  In service, he also had several instances of
complaints of pain and other symptoms involving what seemed
best described as the chest wall, and what was described on
occasion as tendinitis or costochondritis.  Similarly, there
were some instances when he had low back pain seemingly not
associated with any other problems, either with or without
precedent trauma and sometimes seemingly associated with the
neck and/or thoracic pain and symptoms.

Since service, the veteran has experienced similar ongoing
symptoms involving not only involving the cervical but also
thoracic and lumbosacral areas of the back, but also both
shoulders and both upper extremities and has complained of
pain in his chest wall.

The veteran has also had several post-service injuries
including one involving being caught in or smashed by an
elevator in 1989.  Thus, the already interwoven factual
scenario is complicated by the onset of potential
intercurrent injuries and residuals.

Records are in the file showing that the veteran has been
evaluated on numerous occasions.  However, it also remains
unclear the exact extent to which his symptoms are due to
cervical myositis, and/or the initial inservice disabilities
and which are not.

In adjudicating issues ## 2, 3, 6, and 8, the RO has also not
fully addressed either the basic underlying question of
whether there has been interactive impact on and between
nonservice-connected on service-connected disabilities either
pursuant to 38 C.F.R. � 3.310 and/or pursuant to the tenets
of Allen v. Brown, 7 Vet. App. 439 (1995).  This must be
considered.

And finally, while there has been some specialized
neurological testing, etc., there has been undertaken no
specialized orthopedic and neurological evaluation to include
medical opinion as to the relationship of current symptoms to
inservice disability and/or service-connected cervical
disabilities.

Since the inservice symptoms including complaints of pain and
limitations in the low and thoracic areas of the spine as
well as chest wall complaints and problems involving both
right and left shoulders and arms, there appears to be raised
a valid issue as to whether the current symptoms are (1) in
any way continuations of the inservice problems; (2)
reflective of intercurrent disease or injury, as concluded by
the RO; and/or (3) a combination of both.

In that specific regard, while the RO is well justified in
noting that the veteran has indeed had a number of post-
service incidents [including the one referenced above in
which the elevator apparently caused injury and one or more
other instances when he was reaching overhead and/or
lifting], there is no sound clinical basis for reaching a
definitive conclusion as to the ultimate cause of all of his
symptoms in these areas (i.e., low back, right and left
shoulders, chest wall).

The Court has repeatedly admonished that VA cannot substitute
its own judgment or opinion for that of a medical expert and
must review the record based on the entire evidentiary record
including thorough and comprehensive examinations that are
representative of the entire clinical picture.  See Colvin v.
Derwinski, and Brown v. Brown, op. cit.

Pursuant to VA's duty to assist the appellant in the
development of facts pertinent to his claims under
38 U.S.C.A. � 5107(a) (West 1991); 38 C.F.R. � 3.103(a)
(1997), the Board is deferring adjudication of the remaining
issues on appeal pending a remand of the case to the RO for
further development as follows:

1.  The veteran should be requested to
provide the names, addresses, and
approximate dates of treatment for any
other health care providers, VA and non-
VA, inpatient and outpatient, who have
treated him for low back, right and left
shoulder, and chest wall pain
symptomatology since service.

After obtaining any necessary
authorization or medical releases, the RO
should request and associate with the
claims file legible copies of the
veteran's complete treatment reports from
all sources identified whose records have
not previously been secured.

Regardless of the veteran's response, the
RO should secure all outstanding VA
treatment reports as well as any CIGNA
records including from during his periods
of VA employment .

2.  The RO should arrange for VA
examinations of the veteran by an
orthopedist and neurologist who have not
previously evaluated him, at a VA
facility other than one in which he is
now or has been employed, or if
necessary, on a fee-basis, for the
purpose of ascertaining the nature,
extent of severity, and etiology of any
low back, right and left shoulders, upper
extremities and chest wall disorders
which may be present.

The claims file and separate copies of
this remand must be made available to and
reviewed by the examiners prior and
pursuant to conduction and completion of
the examinations.  Any further indicated
medical studies should be conducted.

The examiners must be requested to
express opinions as to whether any such
disorders found on examination are in any
way related to or impacted by clinical
findings reported in the service medical
records; and/or secondary to any current
cervical disorder(s) found on
examination; and/or exclusively due to
intercurrent injury since service; or a
combination of these factors.

A written, comprehensive and annotated
assessment must be made by the examiners
as to the veteran's service-connected
disabilities as they impact on his
nonservice-connected ones, if any, and/or
on his ability to work.

A clear distinction must be made between
the already service-connected left upper
extremity radiculopathy and the
additionally claimed left shoulder
disability; as well as any other
radiculopathy or secondary symptomatic
features of the service-connected
cervical disability [whether myositis,
which by definition would involve
muscles; or alternatively involving bone
or other structures, as also delineated
by the examiners] and any other claimed
disabilities.  Any opinions expressed
must be accompanied by a complete
rationale.

3.  Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed.  In particular, the RO should
review the requested examination reports
and required opinions to ensure that they
are responsive to and in complete
compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.

4.  After undertaking any
development/actions deemed appropriate in
addition to that outlined above, the RO
should adjudicate the issues of service
connection for low back, left shoulder
and chest wall disorders, and
readjudicate the issue of whether new and
material evidence has been submitted to
reopen a claim for service connection for
a right shoulder disorder under all
applicable alternative theories of
direct, presumptive and/or secondary
service connection including 38 C.F.R.
� 3.310 and Allen.  The RO may also need
to collaterally address, to the extent
relevant, a clear delineation and
reassessment of the already service-
connected cervical myositis with left
radiculopathy and its associated
evaluation.

If the benefits requested on appeal are not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case.  A reasonable period of time for a
response should be provided.  Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order.  By this remand, the Board intimates no
opinion as to any final outcome warranted.  No action is
required of the veteran until he is notified by the RO.

	RONALD R. BOSCH
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 & Supp. 1998), 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
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.  Appellate rights do not
attach to those issues addressed in the remand portion of the
Board's decision, because a 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)
(1997).


judge_norm: J SHERMAN ROBERTS

disposition: granted

condition: back

text:
Citation Nr: 9826000
Decision Date: 08/28/98    Archive Date: 07/27/01

DOCKET NO.  94-40 476	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral upper
extremity peripheral neuropathy (claimed as a disability
manifested by bilateral hand/finger pain), other than as a
symptom of cervical degenerative disc disease.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

William L. Pine

INTRODUCTION

The appellant had active service from November 1980 to
January 1993, with over seven years of prior active service.

This appeal is from a June 1993 rating decision by the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO).

In a June 1998 brief, the appellant's representative states
the matter of entitlement to service connection for traumatic
arthritis as at issue in the instant decision.  It is not.
That issue was finally decided in the August 1997 decision of
the Board of Veterans' Appeals (Board).

In an August 1997 remand, the Board observed that the RO
denied service connection for a disability claimed as
bilateral hand/finger pain based on the finding that the
symptoms were attributable to cervical degenerative disc
disease that was not service connected.  The Board limits
this decision to the issue of entitlement to service
connection for peripheral neuropathy, as distinguished from
manifestations of cervical disc disorder, because diagnoses
of record support that construction, and because the matter
of service connection for cervical disc disease is not at
this time the subject of an original adjudication.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that he is entitled to service
connection for pain and other sensory disturbances in both
hands and fingers that began in service and that has been
diagnosed as peripheral neuropathy.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
� 7104 (West 1991 & Supp. 1998), 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 evidence supports a grant
of service connection for bilateral peripheral neuropathy of
the upper extremities.

FINDINGS OF FACT

1.  Symptoms of pain and decreased function of the hands and
fingers bilaterally began in service and have persisted
continuously since their onset.

2.  The record contains multiple diagnoses of bilateral upper
extremity peripheral neuropathy possibly associated with
chemical exposure in service.

CONCLUSION OF LAW

Bilateral upper extremity peripheral neuropathy was incurred
in service.  38 U.S.C.A. �� 1110, 1131, 5107 (West 1991);
38 C.F.R. �� 3.2(i), 3.303(b), (d) (1997).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Background

Service personnel records reveal the appellant served in the
Air Force as an airlift electrical and environmental systems
technician for 12 years and as a tactical electrical
environmental systems specialist for eight years.

Service medical records from June 1972 to October 1992
include medical history and examination reports on entrance
that were negative for any history or finding of pain in the
hands or fingers.  There was a history of pre-service
fracture of the left wrist and of the left clavicle.  The
appellant lacerated his left index finger in April 1974.  No
sequelae are documented.  In August 1978, he hit the middle
knuckle of his right hand against the side of an aircraft.
The swelling was diagnosed as a soft tissue injury.  No
sequelae are documented.  He fractured the right ulna in a
motorcycle accident in January 1980.  Follow-up examination
on January 28, 1980, noted decreased sensation, ulnar nerve,
with good function.  Subsequent follow-up of the fracture is
silent about neurological residuals.  A November 1981 report
of physical examination for qualification as a flight
engineer noted full range of motion and no functional defect
of the upper extremities with no complications or sequelae of
a fractured right arm.  A July 1984 review of his medical
records found no contraindication for overseas duty.  In July
1986 he sustained a left wrist sprain playing softball.  In
March 1989 he lacerated his right palm, which was sutured.

In January 1991, the appellant sustained a fracture of the
distal phalanx of the left thumb, confirmed by x-rays.  He
was counseled about post-traumatic arthritis.  A December
1991 x-ray study of both hands showed no significant bony,
articular, or soft tissue abnormality.  An August 1992
retirement medical history was negative regarding hand or
finger pain or functional limitation.  The report of physical
examination for retirement noted full range of motion,
fingers non-tender, and good strength.  A September 14, 1992,
medical record annotated "Ret[irement] physical" noted
continued pain in PIP (proximal interphalangeal) joints,
fingers of both hands, no morning stiffness, decreased pain
with use; aching-type pain.  Objective observation referenced
the retirement physical examination report.  The assessment
was questionable overuse syndrome.  On October 7, 1992, the
appellant was seen for complaints of pain in both hands.  X-
ray studies of the hands were said to be normal.  He reported
no morning stiffness, but developing PIP pain as day went on.
He reported a first episode of motor deficit two weeks
previously while shoveling, and he reported having trouble
holding a pen to write.  He said that playing softball he had
had some pain off and on for several years.  There was a
history of past fracture and dislocation of fingers.
Examination was essentially normal.  The impression was "use
disuse."  The appellant's service medical records also
include records of complaints and treatment for numerous
miscellaneous problems.

On VA examination in April 1993, the appellant complained of
pain in his fingers off and on for about ten years without
any cause found.  He reported the fingers were worse after
heavy work.  Examination was essentially negative.  The
diagnosis was history of painful fingers with undetermined
cause.

September 1993 records from McRae Family Medical Care Center
show the appellant was seen several times for complaints of
swollen hands, unrelieved by medication.  His fingers were
swollen on examination, without edema anywhere else in his
body.  Laboratory studies for rheumatoid arthritis were
negative.  The diagnosis was osteoarthritis.

In an October 1993 report, I. Lopez, M.D., Neurologist, took
a history of prior fractures and of occupational exposure to
many chemicals, solvents, and acids as well as repetitive
motion as an aircraft electrician in the service.  He
reported decreased sensation of the forearms and hands, which
improved towards the elbows and shoulders.  Autonomically,
the upper extremities were normal.  Other tests were normal.
The diagnoses were polyneuropathy, arms, and peripheral
neuropathy.  Dr. Lopez opined that the history and
presentation were indicative of polyneuropathy with a
peripheral neuropathy component affecting the arms.  Noting
the occupational history, he opined that it was possible the
solvents used in electromechanics, which included
polycarbonates and acids, could have produced disturbances of
the peripheral nerves of the upper extremities.  He also
stated that repetitive motion was capable of producing some
forms of neuropathy affecting the upper extremities.
Electromyogram (EMG) and nerve conduction velocity (NCV)
studies were said to indicate right radial neuropathy and
right ulnar tunnel syndrome.

A Lake Shore Hospital report of a November 1993 magnetic
resonance imaging (MRI) study of the cervical spine showed
herniation of the C 5-6 intervertebral disc with chronic
degenerative disease.  There was no radiographic evidence of
acute bone abnormality.  On January 10, 1994, A. Reid, M.D.,
a neurosurgeon, examined the appellant.  Dr. Reid's
impression was that the appellant's symptoms were consistent
with central C5-6 disc herniation with impingement on the
median nerve.  He based his opinion on history, complaints by
the appellant of recently increased pain in both hands and
biceps, examination showing hypalgia to pinprick principally
in a right C6 pattern, and review of the EMG, NCV, and MRI
studies, notwithstanding that the EMG and NCV studies had
ruled out median nerve involvement.

On VA examination on January 16, 1994, the appellant reported
bilateral hand pain dating back to approximately 1985,
associated with all fingers, worst in the thumb and index
fingers bilaterally.  He complained of constant symptoms and
occasional swelling, no obvious weakness, but a subjective
sense of diminished grip strength, and greater numbness in
his thumb and index fingers than in the rest of his hands.
He also complained of recent bilateral elbow pain and of
occasional stiff neck without obvious neck pain.  Sensory
examination revealed decreased pinprick involving the thumb
and index finger bilaterally more than the remainder of the
hand, with paresthesias and hypesthesia also involving the
remainder of his hands.  There was minimal decreased
sensation of the forearms bilaterally.  The examiner noted
the previous EMG, NCV, and MRI results.  The diagnoses were
cervical disc disease with herniated disc at C5-6, and
peripheral neuropathy.  The examiner opined that the cervical
disc disease may account for the numbness restricted to the
thumb and index finger, the remainder of the hand numbness
was most likely secondary to peripheral neuropathy.

In January 1994, the appellant had cervical diskectomy at
Alachua General Hospital.  Physical examination at that time
produced a diagnosis of C5-6 herniated nucleus pulposus with
myeloradiculopathy.  Post-operative diagnosis was the same.

An April 1994 report of post-operative progress from Dr. Reid
stated that the appellant had normal strength and sensation
throughout at that examination.

A June 1996 report from J. Mercer, M.D., stated that the
doctor reviewed the appellant's military medical records,
which showed a herniated C5-6 disc with resulting neuropathy
of the bilateral upper extremities.  Dr. Merced stated he had
been treating the appellant for that problem for the past
several years.

The appellant had VA orthopedic and neurologic examinations
in February 1998.  Both examiners reviewed the claims folder.

The orthopedic examiner noted a history of onset of pain in
both hands, including the second through fifth fingers of
both hands, and very occasional neck pain two years prior to
separation from service.  The appellant had no history of
trauma to either hand except for fracture of the left thumb.
He used his hands extensively as an airplane electrician in
the service.  Examination revealed normal ranges of motion of
the MP (metacarpophalangeal), PIP and DIP joints of both
hands from the second through fifth fingers bilaterally.
There was decreased sensation in the tips of the fingers to
pinprick.  There was normal range of motion of the wrists,
good apposition of the tips of the fingers to the palmar
crease, no interosseous atrophy or weakness, and no swelling
or tenderness of the joints of the hands.  The diagnosis was
peripheral neuritis.  No orthopedic abnormalities were seen.
The examiner opined that a possibility of a relationship
[between the diagnosis and] his service occupation and use of
acids and commercial solvents while in the service does
exist.

The VA neurologic examiner noted the appellant's eight-year
history of progressive, slowly deteriorating loss of control
of his hands, characterized by numbness in the fingertips and
trouble with fine movements of his hands.  The appellant
denied frank weakness.  He reported no toxic exposures.
Motor examination was negative.  Reflexes showed no focal
lesions, and upper extremity coordination was intact.
Sensory examination revealed mild distal diminution to pin,
touch, and temperature in both upper extremities.  There were
no focal distribution findings and no findings of radial,
ulnar, or median neuropathy.  The impression was mild chronic
upper extremity neuropathy causing some difficulty with
proprioception and fine movements in both upper extremities.
The examiner opined that the etiology was obscure, but may
explain the appellant's dysesthesias and loss of dexterity.

II.  Analysis

In seeking VA disability compensation for peripheral
neuropathy, the appellant seeks to establish that current
disability results from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. �� 1110, 1131, 5107(b)
(West 1991).  Such a disability is called "service
connected."  38 U.S.C.A. � 101(16) (West 1991).

Service connection connotes many factors
but basically it means that the fact,
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.  This may be accomplished by
affirmatively showing inception or
aggravation during service or through the
application of statutory presumptions.

38 C.F.R. � 3.303(a) (1997).  Such service connection may be
shown by direct evidence of incurrence in service or by
application of a statutory presumption, e.g., for diseases of
the nervous system.  38 U.S.C.A. �� 1101, 1112 (West 1991 &
Supp. 1998); 38 C.F.R. �� 3.307, 3.309 (1997).

Before the Board may consider the merits of the claim,
preliminary determinations are required.  First, it must be
determined that the application for benefits is complete, and
if not, whether VA has discharged any duty it may have to so
inform the claimant.  38 U.S.C.A. � 5103(a) (West 1991).  The
appellant has provided no information indicating a source of
evidence not of record.  His application for disability
compensation is complete, and VA has no duty to inform him of
the necessity to submit any evidence to complete it.

Second, "a person who submits a claim for benefits under a
law administered by the Secretary [of Veterans Affairs] shall
have the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded."  38 U.S.C.A. � 5107(a) (West 1991).  If the
appellant does not meet that burden, the Board will not
consider the merits of the underlying claim.  Grottveit v.
Brown, 5 Vet. App. 91 (1993).  The appellant has submitted
current medical diagnoses of peripheral neuropathy, service
medical records showing incurrence of neuropathic symptoms in
service, and current medical opinions of a nexus between the
current peripheral neuropathy and service.  See Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997).  The claim is
therefore well grounded.  38 U.S.C.A. � 5107(a) (West 1991).
The record is adequately developed to permit the Board to
decide the appeal; therefore VA's duty to assist the
appellant in developing facts in support of his claim is
discharged.  Id.

The appellant may establish entitlement to service connection
for peripheral neuropathy with evidence of continuity of
symptomatology between a condition noted in service (or
during an applicable presumptive period) and a currently
diagnosed condition.  38 C.F.R. � 3.303(b) (1997).  "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) (1997).  Although peripheral
neuropathy might be considered an "organic disease[] of the
nervous system" under the presumption regulation, 38 C.F.R.
� 3.309, the Board need not reach the question whether the
condition was 10 percent disabling during the presumptive
period and thus qualifies for the presumption, id., because
the rules pertaining to continuity of symptomatology,
38 C.F.R. � 3.303(b), and to post-service initial diagnosis
of disease, 38 C.F.R. � 3.303(d), are sufficient to authorize
service connection given the facts in this case.

The condition of pain in the fingers ultimately diagnosed as
peripheral neuropathy, for which the appellant seeks service
connection, was noted in service in September and October
1992.  Although the separation examination was negative for a
diagnosis, the Board interprets the report to be merely a
finding of no condition that warranted delay in the
appellant's retirement.  Therefore, the negative report is of
little probative value to show that the complained of
condition did not exist, especially because the
symptomatology was again noted after the stated retirement
examination was performed.

The essentially negative finding of the April 1993 VA
examination report is adverse to the appellant's claim,
because it tends to show discontinuity of symptomatology.
However, the symptoms were again noted in a clinical setting
in September 1993.  Nothing in section 3.303(b) defines a
length of time after service within which symptomatology must
manifest to be continuous.  Neither does a single instance of
negative findings necessarily constitute a break in
continuity.  Seen in the context of consistently positive
findings from at least September 1993, only five months after
the April 1993 finding of painful fingers by history, the
Board gives the April 1993 examination report little weight
as evidence discontinuity of symptomatology.

There is an apparent conflict in the medical opinions about
the etiology of the symptomatology in question, and whether
the appellant has peripheral neuropathy or cervical
radiculopathy.  Dr. Lopez felt there was peripheral
neuropathy, and he acknowledged a plausible nexus between the
symptomatology confirmed by electrodiagnostic testing and
occupational exposure to certain chemicals in service.  Dr.
Reid, using other diagnostic technology, felt there was a
discogenic etiology for the symptomatology, and attributed
the symptoms to pathology of different nerves with a
different cause than did Dr. Lopez.  The January 1994 VA
examination reconciles the apparent conflict in diagnoses of
cervical radiculopathy (as the manifestation was diagnosed in
the January 1994 Alachua General Hospital report) versus
peripheral neuropathy, showing that both conditions coexist.
Thus, the diagnosis of cervical HNP with median nerve
involvement is not evidence contrary to the appellant's
claim.

The April 1994 report from Dr. Reid shows an abatement of
sensory symptomatology after the January 1994 surgery.  This
represents another discontinuity of symptomatology,
regardless of the etiology.  Such evidence discontinuity
tends to weigh against granting service connection based on
continuity of symptomatology.  38 C.F.R. � 3.303(b) (1997).

Dr. Mercer's report, while showing the presence of bilateral
upper extremity symptoms, attributes them to the C5-6 disc.
This evidence tends to weigh against the attribution of the
claimed symptomatology to chemical exposure in service.
However, his report is superficial in its language, and in
light of the January 1994 VA opinion does not serve to
establish that the appellant's symptomatology is exclusively
due to the disc disease.  Thus, the report adds too little
weight to the evidence against concluding there is also a
bilateral upper extremity peripheral neuropathy caused by
chemical exposure in service to create a preponderance of
evidence against the appellant's claim.

Two subsequent VA examiners, in February 1998, diagnosed
neuropathic conditions.  The neurologist termed the
symptomatology peripheral neuropathy.  The orthopedist felt
that exposure to certain chemical in service was a plausible
explanation for the symptomatology.  The February 1998 VA
examination reports thus tend to support a conclusion of
continuity of symptomatology between the condition noted in
service and the current diagnosis.

To the extent the nexus between the current peripheral
neuropathy and service requires the fact of exposure to
certain chemicals, the Board finds the appellant's statements
to several physicians to be credible evidence of such
exposure.  This is not a question of the appellant's
competence as a layman to report on chemical exposure in the
occupation of aircraft electrician.  See Espiritu v.
Derwinski, 2 Vet App. 492 (1992) (lay persons competent to
testify on observations not requiring special expertise to
interpret).  Rather, the appellant is qualified to report the
types of chemicals used in performing electrical work on
aircraft, having served for many years as an aircraft
electrician, achieving a senior status in that specialty.
Notably, although the names of the products are not of
record, he provided Dr. Lopez with sufficient detail to
permit the doctor to identify polycarbonates and acids as
among the substances with which the appellant had contact.
Thus, the appellant's testimony is sufficient to qualify the
evidence of medical nexus as plausible rather than merely
hypothetical.

The appellant has reported variously two, eight, and 10 year
histories of the duration of his symptoms.  The service
medical record is replete with treatment records for multiple
medical problems, but there are no complaints or treatment
for the currently-claimed condition before September 1992.
The claimed symptomatology was, however, actually recorded in
the service medical records, so the question of whether it
arose two, eight, or 10 years previously has little bearing
on the outcome of this case.

Finally, the probative value of the evidence suggesting an
etiology for peripheral neuropathy other than chemical
exposure in service, or suggesting another diagnosis
altogether, is no greater than to put in equipoise the
evidence for and against a conclusion that peripheral
neuropathy is related to such chemical exposure.  Thus, the
appellant is entitled to the benefit of the doubt on that
question.  38 U.S.C.A. � 5107(b) (West 1991); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).  Giving the appellant the
benefit of the doubt, the Board must conclude that all the
evidence, including the service medical records, establishes
that peripheral neuropathy of the bilateral hands of record
establishes incurrence of peripheral neuropathy in service.
38 C.F.R. � 3.303(d) (1997).  Thus, the appellant is entitled
to service connection for bilateral peripheral neuropathy of
the upper extremities even if the April 1993 VA examination
report and the April 1994 report from Dr. Reid were taken as
dispositive evidence of discontinuity of symptomatology such
that service connection was not warranted under section
3.303(b).

ORDER

Service connection for bilateral upper extremity peripheral
neuropathy (claimed as a disability manifested by bilateral
hand/finger pain), other than as symptomatic of cervical
degenerative disc disease, is granted.

	J. SHERMAN ROBERTS
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. � 7266 (West
1991 &  Supp. 1998), 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.