text:
BVA9421001
DOCKET NO.  92-24 527     )       DATE
          )
          )

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

THE ISSUE

Entitlement to an effective date earlier than February 24, 1989,
for the grant of a total rating for compensation purposes based
on individual unemployability.

REPRESENTATION

Appellant represented by: American Red Cross

WITNESSES AT HEARING ON APPEAL

Appellant, and M. E.

ATTORNEY FOR THE BOARD

Mark D. Hindin, Counsel
INTRODUCTION

The veteran had active service from January to June 1965, and
from August 1967 to August 1975.

This matter arises from a January 1992, rating decision in which
the regional office (RO) established February 24, 1989 as the
effective date for the grant of a total rating for compensation
purposes based on individual unemployability.  This was the date
of receipt of an application for increased compensation based on
individual unemployability.

In November 1993, the Board of Veterans' Appeals (the Board)
remanded the case to the RO in order to consider the veteran's
claim of clear and unmistakable error in a May 1984 rating
decision of the San Juan, Puerto Rico RO, and to consider the
effect of a finding that the veteran's claim for a total rating
had remained open from the date of receipt of an application for
a total rating received in November 1985.  That development was
completed and the case is again before the Board.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the effective date for the grant of a
total rating for compensation purposes based on individual
unemployability should have been in May 1983, when he was advised
by a personnel chief at the former Veterans Administration, now
the Department of Veterans Affairs (VA), that he was unfit for
his job as a VA pharmacy clerk.  He asserts that there was clear
and unmistakable error in a May 1984 rating decision which denied
entitlement to a total rating for compensation purposes in that
the RO did not consider the provisions of 38 C.F.R. � 4.18, and
that if those provisions had been considered, he would have been
granted a total rating.

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 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 evidence is in favor of an effective date of
November 13, 1984, for the grant of a total rating for
compensation purposes based on individual unemployability.

FINDINGS OF FACT

1.  In the May 1984 rating decision, the correct facts known at
that time, were before the adjudicator.  The decisions reached in
that rating decision did not involve clear and unmistakable
error; and the decision was based on the record and law in
existence at the time of that decision.

2.  The veteran's claim of entitlement to a total rating for
compensation purposes based on individual unemployability was
received on November 13, 1985.

3.  On November 13, 1984, it was factually ascertainable that the
veteran was unemployable.

CONCLUSIONS OF LAW

1.  Clear and unmistakable error was not involved in a May 1984,
rating decision which denied entitlement to a total rating for
compensation purposes based on individual unemployability.  38
U.S.C.A. �� 7105 (West 1991); 38 C.F.R. �� 3.104, 3.105, 3.500,
4.30, 20.302, 20.1103 (1993).

2.  The criteria for an effective date of November 13, 1984 for
the grant of a total rating for compensation purposes based on
individual unemployability have been met.  38 U.S.C.A. �� 5107,
5110 (West 1991); 38 C.F.R. �� 3.321, 3.340, 3.341, 3.400, 4.16,
4.18 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran has presented a well grounded claim within the
meaning of 38 U.S.C.A. � 5107.  In this regard, he has submitted
evidence in support of this claim which renders it plausible.
The Board also finds that VA has complied with its obligation to
assist him with the development of that claim under the same code
provision.

In order to establish the correct effective date for the grant of
a total rating for compensation purposes based on individual
unemployability, it is necessary to first consider the contention
that there was clear and unmistakable error in a May 1984 rating
decision which denied entitlement that benefit.  If that decision
was not clearly and unmistakably erroneous, then it is final and
binding. and hence an effective date prior to the date of that
decision would not be possible.  38 C.F.R. � 3.104, 20.302,
20.1103.  On the other hand a decision that there was clear and
unmistakable error would constitute a reversal of the prior
decision and have the same effect as if the corrected decision
had been made on the date of the reversed decision, resulting in
an effective date at least as early as May 1984. 38 C.F.R.
� 3.105.

The United States Court of Veterans Appeals (the Court) has
established a three pronged test, each of which must be met
before clear and unmistakable error is established:

'(1) ...the correct facts, as they were
known at the time, were not before the
adjudicator (i.e. more than a simple
disagreement as to how the facts were
weighed or evaluated) or the statutory or
regulatory provisions extant at the time
were incorrectly applied,' (2) the error
must be 'undebatable' and of the sort
'which had it not been made, would have
manifestly changed the outcome at the time
it was made,' and (3) a determination that
there was CUE [clear and unmistakable
error] must be based on the record and law
that existed at the time of the prior
adjudication in question.

Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting in part
Russell v. Principi,
3 Vet.App. 310 (1992).

In this case the veteran has asserted that the RO failed to
consider the provisions of 38 C.F.R. � 4.18, and thereby failed
to apply the correct regulatory provisions to
the facts of the case.  38 C.F.R. � 4.18, provides that a veteran
may be considered unemployable upon termination of employment
which was provided on account of disability, or in which special
consideration was given on account of the disability, when it is
satisfactorily shown that he or she is unable to secure further
employ-ment.  That code provision also provides criteria for
considering the relationship between unemployability and static
disabilities, and makes reference to situations where pension
benefits had been awarded on the basis of service-connected and
nonservice-connected disabilities.  However, at the time of the
May 1984, decision there was no evidence that the veteran's
pervious employment was provided due to disability or that he was
given special consideration on account of disability.  His
disabilities were not static in nature, and he had not been in
receipt of pension benefits.  Also it was noted in the rating
decision that Code 18 was denied and
that the veteran had two years of college education, did not meet
the schedular requirements, and he was not considered to be
totally disabled due to his service connected conditions.  He was
told that he was not considered totally disabled in a letter in
June 1984.  Accordingly, the provisions of 38 C.F.R. � 4.18, were
considered, and there is no indication of clear and unmistakable
error in that decision.

Since the May 1984, decision is final, an effective date cannot
be assigned prior to the date of that decision.

Ordinarily, the effective date for increased disability
compensation is the date it was factually ascertainable that an
increase in disability had occurred, if a claim for increase is
received within one year of that date.  If a claim is not
received within one year, the effective date is the date of
receipt of claim.  38 C.F.R. � 3.400 (O)(2).  If entitlement was
not shown until after the date of claim, then the effective date,
is the date entitlement arose.  38 C.F.R. � 3.400 (O)(1).

The date of the veteran's claim is November 13, 1985, the date
his application for increased compensation based on
unemployability was received at the RO.  As indicated in the
Board's previous remand, the veteran's claim has remained open
since that date.  In this regard it should be noted that he
submitted a timely notice of disagreement with the December 1985,
rating decision which denied entitlement to a total rating, and a
timely substantive appeal following the issuance of a statement
of the case in September 1986.  The veteran was granted a total
rating in a hearing officer's decision in January 1992, without
his appeal reaching the Board.

Since the date of claim is November 13, 1985, the earliest
possible effective date
for the grant of a total rating is November 13, 1984 under 38
C.F.R. � 3.400 (O)(1).  A determination as to the proper
effective date for the grant of a total rating for compensation
purposes, turns on when it was factually ascertainable that an
increase in disability had occurred.

At the time of the veteran's claim, service connection was in
effect for anxiety reaction, evaluated as 30 percent disabling
since July 1983; post-traumatic myositis of the lumbar
paravertebral area, evaluated as 20 percent disabling under
Diagnostic Code 5293, pertaining to intervertebral disc disease,
since July 1983; residuals of a meniscectomy and patellectomy of
the left knee, evaluated as 10 percent disabling since August
1981; and scars of the tip of the left 4th finger and bilateral
high frequency sensorineural hearing loss disability, each
evaluated as noncompensable.  His combined evaluation was 50
percent.

The RO has determined that the veteran was not entitled to an
effective date earlier than February 1989, because he did not
meet the schedular criteria for a total rating until July 1988.
A total rating can be assigned for compensation where the
schedular evaluation is less than total when a veteran is unable
to secure or follow a substantially gainful occupation as the
result of service connected disabilities, provided he has a
single disability rated as 60 percent disabling, or more than one
disability, one of which is evaluated as at least 40 percent
disabling and additional disability for a combined 70 percent
evaluation.  38 C.F.R. 4.16.  However, where those percentages
are not met, a total rating can be granted if the disabilities
render him unemployable, that is incapable of maintaining
employment consistent with his education and occupational
experience. 38 C.F.R. �� 3.321, 3.340, 3.341.  In this case it
was factually ascertainable as of November 13,1984, one year
prior to the date of the veteran's claim, that his service
connected disabilities rendered him unemployable.

The evidence of record as of November 13, 1984, included
employment records showing that he had been separated from
employment with VA in June 1983 following recommendations from
examining physicians.  In May 1983, a physician had recommended
that action be taken to separate the veteran from work on the
grounds that the veteran was unfit for such work due to severe
anxiety disorders with depressive and paranoid features,
dorsolumbar paravertebral fibromyositis, duodenal ulcers and
esophagitis.  The report of an examination conducted to determine
the veteran's disability status in May 1983, shows that the
veteran was found to be unable to squat and had severe pain
exacerbated by prolonged weight bearing, standing, or walking and
with marked anxiety.

Records from a private hospital, show that the veteran was
hospitalized in September 1984, and again in October 1984 for
treatment of herniated nucleus pulposus, documented on CT scan.
This disability was described as severe.  In January 1985, a
physician from that facility, wrote that the veteran should be
considered totally disabled on a permanent basis.  This opinion
was presumably based on the findings during the hospitalizations
in September and October 1984.

In the veteran's November 1985, claim he reported that he had
last worked full time in June 1983, as a clerk typist for VA, and
that he had left this employment due to disability and was
prevented from obtaining further employment by his service
connected disabilities.  He also reported that he had completed
college, and that he had been trained as an aircraft mechanic
during service.

As of November 13, 1984, it was ascertainable that the veteran
had been found unfit for work in 1983 (albeit in part due to
nonservice-connected gastrointestinal disorders), that he had a
service connected psychiatric disability described as severe, and
had been treated for a service connected back disability, also
described as severe.  A private physician subsequently concluded
that the findings during this treatment justified a conclusion
that the veteran was unemployable on the basis of the service-
connected back disability alone.  It was also ascertainable by
November 13, 1984, that the veteran had in fact been unemployed
since his separation from his previous employment with VA in June
1983.  The Board concludes that it was factually ascertainable
that the veteran's service connected disabilities rendered him
unemployable on November 13, 1984, and that this is the
appropriate date for the grant of a total rating for compensation
purposes based on individual unemployability.

ORDER

An effective date of November 13, 1984, for the grant of a total
rating for compensation purposes based on individual
unemployability is granted.

          LAWRENCE M. SULLIVAN
          Member, Board of Veterans' Appeals

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

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


series: legacy

judge_norm: GEORGE R SENYK

judge_role: Member, Board of Veterans' Appeals

disposition: dismissed

condition: ptsd

disposition: denied

condition: psychiatric

condition: headache

benefit: pension

text:
BVA9422001
DOCKET NO.  93-04 652     )       DATE
          )
          )

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

THE ISSUES

1.  Entitlement to service connection for post-traumatic stress
disorder.

2.  Entitlement to service connection for an anxiety disorder.

3.  Entitlement to an increased rating for hypertension with
headaches, currently evaluated as 10 percent disabling.

4.  Entitlement to a permanent and total disability rating for
pension purposes.

REPRESENTATION

Appellant represented by: Alabama Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

Milo H. Hawley, Counsel

INTRODUCTION

The veteran had active service from April 1969 to April 1971.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 1992 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.

In the veteran's June 1992 notice of disagreement, he indicates
disagreement with the denial of an increased rating for
hypertension with migraine headaches.  Service connection has
been established for hypertension with headaches which are due to
his hypertension.  Therefore, the veteran should be advised that
service connection for the separate disorder of migraine
headaches has not been established and if he desires to file a
claim for service connection for migraine headaches he may do so.

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that the veteran currently has an anxiety
disorder which is inherently part of post-traumatic stress
disorder and that further development should have been undertaken
with respect to his psychiatric disabilities.  It is asserted
that these disabilities were either incurred in or occurred as a
result of his active service.  It is contended that his service-
connected hypertension with headaches is more disabling than
currently evaluated.  It is asserted that he is permanently and
totally disabled due to his multiple disabilities.

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 in this matter, and
for the following reasons and bases, it is the decision of the
Board that, with respect to the issue of service connection for
post-traumatic stress disorder, the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is well
grounded and that, with respect to the remaining issues, the
preponderance of the evidence is against service connection for
an anxiety disorder, against an increased rating for hypertension
with headaches, and against the assignment of a permanent and
total disability rating for pension purposes.

FINDINGS OF FACT

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

2.  The veteran is not shown to have post-traumatic stress
disorder.

3.  The veteran's currently manifested anxiety disorder has not
been shown to have had its onset during active service or to be
otherwise related to service.

4.  The veteran's hypertension is manifested by diastolic
pressures predominantly less than 110; definite symptoms are not
shown.

5.  The veteran was born in December 1948; he has reported a high
school education and occupational experience as a factory worker,
laborer, sawmill operator, and painter.  He has indicated that he
last worked in August or September 1984.

6.  The veteran's permanent disabilities are hypertension with
headaches, evaluated as 10 percent disabling, and anxiety
disorder with alcoholism in remission, evaluated as 30 percent
disabling.

7.  The veteran's disabilities do not preclude him from engaging
in substantially gainful employment considering his age,
education, and employment experience.

CONCLUSIONS OF LAW

1.  With respect to the issue of post-traumatic stress disorder,
the veteran has not submitted evidence of a well-grounded claim.
38 U.S.C.A. �� 1110, 5107 (West 1991).

2.  An anxiety disorder was not incurred in or aggravated by
active service.  38 U.S.C.A. �� 1110, 5107; 38 C.F.R. � 3.303
(1993).

3.  An evaluation greater than 10 percent for hypertension with
headaches is not warranted.  38 U.S.C.A. �� 1155, 5107 (West
1991); 38 C.F.R. � 4.7, Part 4, Code 7101 (1993).

4.  The veteran is less than 100 percent disabled and he is not
unemployable by reason of permanent disability.  38 U.S.C.A.
�� 1502, 1521, 5107 (West 1991); 38 C.F.R. �� 3.321, 3.340,
3.342, and Part 4 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Post-Traumatic Stress Disorder

The threshold question to be answered with respect to this issue
is whether the veteran has presented evidence of a well-grounded
claim; that is, a claim which is plausible.  If he has not
presented a well-grounded claim, his appeal must fail; and there
is no duty to assist him further in the development of that claim
because such additional development would be futile.  38 U.S.C.A.
� 5107.  As will be explained below, the Board finds that the
claim for service connection for post-traumatic stress disorder
is not well grounded.

The claim is that the veteran currently has post-traumatic stress
disorder and that this occurred as a result of his active
service.  The veteran has indicated that, although he had jungle
training, his overseas service was in Germany.  He has not
reported the existence of any inservice stressful event which
could have resulted in post-traumatic stress disorder, nor is it
shown that post-traumatic stress disorder has ever been
diagnosed.  As the veteran has failed to submit evidence showing
that he has post-traumatic stress disorder or that he experienced
a life-threatening event during his active service, his claim for
service connection for post-traumatic stress disorder is not
plausible.  Since he has not met the burden of submitting
evidence sufficient to justify a belief by a fair and impartial
individual that his claim is well grounded, there is no further
duty to assist him in the development of that claim. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992).  The Board does not have
jurisdiction to adjudicate it, and it must, accordingly, be
dismissed.  Grottveit v. Brown, 5 Vet.App. 91 (1993); Boeck v.
Brown, 6 Vet.App. 14 (`1993).

With respect to the remaining issues on appeal, the veteran's
claims are "well grounded" within the meaning of 38 U.S.C.A.
� 5107.  The veteran has been afforded general medical and
psychiatric examinations, and the report of the psychiatric
examination indicates that no diagnostic tests appear to be
needed.  We are satisfied that all relevant facts have been
properly developed and that no further assistance is required to
comply with the duty to assist mandated by 38 U.S.C.A. � 5107.

II.  Anxiety Disorder

Service medical records reflect that in July 1969 the veteran was
seen with complaints of headaches and nervous spells with no
particular pattern.  The impression was probable anxiety.  In
August 1969, the veteran was seen with complaints of chest pain
and feelings of weakness.  The impression was questionable
anxiety.  In January 1970, the veteran was seen with complaints
of headaches, and the diagnoses included depressive headaches.
The report of the veteran's service separation examination,
conducted in April 1971, indicates that he was psychiatrically
normal.

The report of a January 1974 VA examination indicates no
complaints or findings with respect to any psychiatric disease.

Private medical records dated from 1971 to 1992 indicate that the
veteran first had vague complaints mainly of a type associated
with nervousness in November 1977.  At that time the treatment
was by reassurance.  In 1979, it was noted that the veteran was
taking medication for nervousness.  Thereafter, his nervousness
is noted on a regular basis.  The statement of a private
physician, relative to a July 1981 examination, includes a
diagnosis of anxiety.

The report of an April 1992 VA psychiatric examination states
that the veteran reported that he was a nervous person prior to
his active service and was counseled by his captain concerning
his nervousness during active service.  He indicated that in 1979
he had a "nervous breakdown."

The record reflects that the veteran had some minor anxiety in
the 3rd and 4th months of his active service in 1969.  From that
point, on service medical records are silent for any complaint,
finding, or treatment of any anxiety; and the report of his
service separation examination, conducted in April 1971, reflects
that psychiatrically the veteran was normal.  The first post-
service clinical evidence of nervousness appears in a private
November 1977 clinical record.  Medication for nervousness was
being prescribed by 1979.  Service medical records do not
indicate that the veteran had developed a chronic anxiety
disorder during active service, and post-service medical records
do not associate the veteran's currently diagnosed anxiety
disorder with his active service.  Further, the inservice anxiety
cannot be considered to be chronic on the basis of a showing of
continuity between those symptoms and the veteran's post-service
symptoms as there is an interval of approximately seven years
between the veteran's 1969 symptoms and his 1977 symptoms.  There
is no competent medical opinion relating the veteran's current
anxiety disorder to service.  As a layperson, the veteran is not
competent to provide an opinion on this medical question.
Therefore, a preponderance of the evidence shows that there is no
relationship between the veteran's current anxiety disorder and
his active service.  38 U.S.C.A. � 5107.

III.  Hypertension with Headaches

Service medical records reflect that in late 1969 and early 1970
the veteran had elevated blood pressure readings.  A report of
his service separation examination, conducted in April 1971,
indicates that his blood pressure was 118/70.

The report of a January 1974 VA examination states that the
veteran's seated blood pressure was 140/100, recumbent was
144/104, and standing was 136/96.  The diagnoses included
hypertension.

A rating decision in February 1974 granted service connection for
hypertension with headaches and assigned a 10 percent evaluation.
That evaluation has remained in effect until the present time.
Outpatient treatment records encompassing a period between
November 1988 and December 1991 show that all recorded blood
pressure readings had a diastolic pressure of 90 or less.
Tension headaches were reported in July 1991, when the blood
pressure reading was 100/80.

The report of an April 1992 VA general medical examination states
that the veteran reported that he was diagnosed with hypertension
in 1969, but was taken off hypertension medication in 1979 when
he was placed on anxiolytic medications.  He also complained of
headaches which he had approximately 3 to 4 times per month.  He
described his headaches as a pressing sensation which started
behind his eyes and led to a bifrontal throbbing.  He was taking
Vicodin, which relieved his headaches.  His blood pressure was
124/84, and his cardiovascular system was normal.  The diagnoses
included history of hypertension, currently off medications and
not hypertensive; headache disorder, with components of both
migraine and tension headaches; and anxiety disorder.  It was
noted that given the fact that one dose of medication would
relieve the headaches, if they were migraine headaches, they were
of a minor severity.

Hypertension warrants a 10 percent rating when diastolic pressure
is predominantly 100 or more.  When diastolic pressure is
predominantly 110 or more with definite symptoms, a 20 percent
rating is warranted.  38 C.F.R. Part 4, Code 7101(1993).

In reaching its decision, the Board has considered the complete
history of the disability in question as well as the current
clinical manifestations and the effect the disability may have on
the earning capacity of the veteran.  38 C.F.R. �� 4.1, 4.2
(1993).  The Board finds that, in this case, the disability
picture is not so excep-
tional or unusual so as to warrant an evaluation on an
extraschedular basis.  It has not been shown that hypertension
with headaches has caused marked interference with employment or
necessitated frequent periods of hospitalization.  38 C.F.R.
� 3.321(b)(1) (1993).  The criteria for an evaluation greater
than 10 percent have not been met or approximated.  The veteran
has indicated that he ceased taking hypertension medication in
1979.  Private medical records dated in 1990 and 1991 reflect
diastolic readings from 80 to 90.  The VA outpatient treatment
records dated in January 1992 reflects a blood pressure reading
of 120/92 and the veteran's blood pressure at the time of the
examination in April 1992 was not elevated.  Further, the record
does not indicate that his current headaches are related to
elevated blood pressure, so as to warrant consideration of an
increased rating alternatively under the criteria for headache
disorders.  Consequently, there is no basis for assigning a
rating in excess of 10 percent for hypertension.  38 C.F.R.
� 4.7.

IV.  Pension

Disabilities which have been identified clinically include
anxiety disorder, hypertension, and headaches.  The psychiatric
disability is the primary disability identified by the veteran as
precluding him from obtaining and retaining employment.

With respect to the anxiety disorder, the report of the April
1992 VA psychiatric examination states that the veteran tried to
maintain some activity level, but usually became very tired and
had to go to bed by afternoon.  He had tried to paint, but was
unable to paint very well any longer.  Although he no longer felt
intolerably nervous, he continued to have trouble in crowds,
which led him to be fairly withdrawn.  He was unable to tolerate
driving in much traffic.  Though he was no longer very anxious,
he felt very little interest in anything except on occasion.  His
appetite was good and he was not depressed.  He had little
motivation.  Mental status examination showed that the veteran
did not appear overtly anxious, although he was rather fidgety.
He spoke spontaneously and there was increased rate and
productivity of speech, but no pressure.  His appearance was
unremarkable, and he had no unusual behavior.  There was no
delusional thought content, and he denied suicidal thoughts.  His
mood was a bit sad, but his affective range was fairly good and
appeared congruent.  He said that he had never heard voices in
the past, but that in 1979 he heard noises around the house,
which troubled him somewhat.  It was during that time that he
believed someone might harm him, but that was only for a brief
period.  He was attentive, alert, and oriented, with no obvious
impairment of either recent or remote memory.  Intellectually, he
appeared to be average; and his insight and judgment appeared to
be adequate.  The veteran had never been to a psychiatrist.  The
diagnoses included that the veteran had the onset of a severe
anxiety and probably a panic disorder in 1979, but it was not
believed that he had a psychotic break.  He developed alcohol
dependence as a result and that was now in remission.  There was
a suggestion of a very dependent person who was insecure, who had
never been treated by a psychiatrist, and because of a sibling
probably became extremely dependent and never had an opportunity
to make an adequate recovery.  It was recommended that the
veteran seek professional help.

The RO has rated the veteran's anxiety disorder as 30 percent
disabling.  The
30 percent evaluation would appear to be an appropriate
reflection of the disability experienced by the veteran.  While
he is being treated with medication for his anxiety, he does not
receive ongoing mental health care.  He no longer feels much
anxiety, but does have decreased interest and energy.  Therefore,
definite impairment is indicated; but considerable impairment is
not shown since the veteran has no obvious impairment of either
recent or remote memory, continues to be attentive, alert, and
oriented, and has adequate insight and judgment.  Therefore, a
higher evaluation is not for assignment.  38 C.F.R. � 4.7.

The RO has evaluated the veteran's hypertension with headaches as
10 percent disabling.  As discussed earlier, the evidence
reflects that the veteran does not currently take medication for
his hypertension; and, most recently, he is not shown to be
hypertensive without medication.  The clinical evidence reflects
only one elevated diastolic blood pressure reading from 1990
through 1992 with some borderline readings.  His headaches have
not been clinically shown to be associated with his hypertension.
Therefore, as discussed above, an evaluation greater than
10 percent is not warranted.

With respect to the veteran's headaches, the report of the April
1992 general medical examination indicates that there are
components of both migraine and tension headaches.  The veteran
has indicated that he is able to obtain relief from the headaches
by taking Vicodin.  In order for a compensable evaluation to be
assigned for his headaches, characteristic prostrating attacks
would have to be shown.  Since the veteran is able to obtain
relief by taking medication, a compensable evaluation is not for
assignment.  38 C.F.R. � 4.7, Part 4, Code 8100 (1993).

The veteran does not meet the percentage requirements for
disability pension benefits.  That is, he does not have at least
one disability rated as 40 percent or more and sufficient
additional disability to bring the combined rating to 70 percent
or more.  38 C.F.R. �� 4.6, 4.17 (1993).  Further, the evidence
does not establish that the veteran is unemployable by reason of
his disabilities, age, occupational background, and other related
factors.  The veteran was born in December 1948; he has a high
school education and occupational experience as a factory worker,
painter, saw mill operator, and laborer.  The veteran's primary
disability is his anxiety disorder, with his hypertension
essentially under control without medication and his headaches
being controlled with medication.  The evidence does not
establish that these disabilities separately, or in combination,
are so severe as to permanently preclude him from engaging in all
types of substantially gainful employment.

While it is noted that the veteran is in receipt of Social
Security Administration benefits based on disability, it is
observed that the November 1984 Social Security Administration
decision making that award used as its basis for the award
chronic alcoholism, dependent personality, and chronic
schizophrenia.  The current clinical evidence of record reflects
that the veteran's alcohol abuse has been in remission for three
years.  Therefore, chronic alcoholism is not shown to be
currently limiting the veteran's functional capacity.  The Social
Security Administration decision alludes to the possibility that
the alcoholism may have caused minimal brain damage; but current
examination reflects that the veteran has no obvious impairment
with either recent or remote memory, has intellectual functioning
in the average range, and has adequate insight and judgment.
Further, chronic schizophrenia is not currently shown, and the
report of the April 1992 VA psychiatric examination reflects that
the examiner did not believe that the veteran actually ever had a
psychotic break.  He made this statement in reference to the
history of the onset of the veteran's anxiety disorder in 1979.
The April 1992 VA examinations reflect no motor disability which
would interfere with the veteran's ability to perform
substantially gainful employment.  While he does have somewhat
limited vocational experience, he does have a high school
education and was born in 1948, so that age is, not yet, a
critical factor.  The evidence of record does not show that the
veteran, by virtue of his disabilities is precluded from
participating in all substantially gainful employment.  Nor are
the disabilities shown to be such that they would preclude the
average person, with like experience, training, and age, from
gainful employment.  Consequently, a preponderance of the
evidence reflects that the veteran is not permanently and totally
disabled on the basis of either average impairment of earning
capacity or on an extraschedular basis.  38 U.S.C.A. � 5107;
38 C.F.R. �� 3.321(b)(2), 4.15 (1993).

ORDER

The claim for service connection for post-traumatic stress
disorder is dismissed.

Service connection for an anxiety disorder is denied.

An increased rating for hypertension with headaches is denied.

A permanent and total disability rating for pension purposes is
denied.

(CONTINUED ON NEXT PAGE)

          GEORGE R. SENYK
          Member, Board of Veterans' Appeals

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

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


judge_norm: E W SEERY

disposition: granted

text: A 100 percent evaluation for schizophrenia, paranoid type, under 38 C.F.R. § 4.16(c) is granted. Entitlement to a temporary total rating based on hospitalization from August 31, 1992, to October 26, 1992, is established. The

text:
BVA9414002
DOCKET NO.  91-37 506     )       DATE
          )
          )

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

THE ISSUES

1.  Entitlement to an increased rating for schizophrenia,
paranoid-type, currently evaluated as 50 percent disabling.

2.  Entitlement to a temporary total rating based on a period of
hospitalization from August 31, 1992, to October 26, 1992.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. A. McDonald, Associate Counsel

INTRODUCTION

The veteran served on active military duty from August 1956 to
August 1958.  This case was most recently before the Board of
Veterans' Appeals (hereinafter Board) in March 1993, at which
time it was remanded to the Department of Veterans Affairs
Regional Office in Montgomery, Alabama (hereinafter RO) for
further development.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his service-connected disorder is more
severe than currently evaluated.  He maintains that he has been
unable to obtain and retain employment due to his psychiatric
disorder and therefore, a 100 percent disability evaluation is
warranted.  The veteran also contends that he should be awarded a
temporary total rating for the period of August 31, 1992, to
October 26, 1992, as this hospitalization was due to his
service-connected disorder and was in excess of 21 days.

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 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 evidence is in equipoise and therefore supports an
allowance of a 70 percent schedular rating for schizophrenia and
a 100 percent disability evaluation, pursuant to 38 C.F.R.
� 4.16(c), for schizophrenia, paranoid-type.  Further, the
preponderance of the evidence supports an allowance of  the claim
of a temporary total rating based on a period of hospitalization
from August 31, 1992, to October 26, 1992.

FINDINGS OF FACT

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

2.  Manifestations of the veteran's service-connected
schizophrenia, paranoid-type, are severe, requiring frequent
periods of hospitalization, and marked interference with
employment.

3.  The veteran's schizophrenia, paranoid-type, is not productive
of active psychotic manifestations of such extent, severity,
depth, persistence or bizarreness as to produce total social and
industrial inadaptability.

4.  The veteran's only service-connected disability is
schizophrenia, paranoid-type, which precludes him from
substantially gainful employment.

5.  The veteran's period of hospitalization from August 31, 1992,
to October 26, 1992, was required for treatment of his
service-connected schizophrenia.

CONCLUSIONS OF LAW

1.  The veteran's schizophrenia, paranoid-type, is 70 percent
disabling.  38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. Part
4, Diagnostic Code 9205 (1993).

2.  The requirements for a temporary total rating based on
hospitalization from August 31, 1992, to October 26, 1992, have
been met.  38 U.S.C.A. � 5107 (West 1991); 38 C.F.R. � 4.29
(1993).

3.  A 100 percent rating per 38 C.F.R. � 4.16(c) (1993) is
warranted.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon review of the record, the Board concludes that the veteran's
claim is well-grounded within the meaning of the statute and
judicial construction.  Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990); 38 U.S.C.A. � 5107(a).  The Department of Veterans
Affairs (hereinafter VA) therefore has a duty to assist the
veteran in the development of facts pertinent to his claim.  In
this regard, we note that the veteran's service medical records,
post-service private clinical data, and reports of VA outpatient,
hospitalization, and examination reports have been included in
his file.  Upon review of the entire record, the Board concludes
that the data currently of record provide a sufficient basis upon
which to address the merits of the veteran's claim and that he
has been adequately assisted in the development of his case.

I.  Increased Rating for Schizophrenia, Paranoid-Type

With respect to the veteran's claim of entitlement to an
increased rating for schizophrenia, paranoid-type, we point out
that disability ratings are based, as far as practicable, upon
the average impairment of earnings resulting from the disability.
38 U.S.C.A. � 1155.  The average impairment is set forth in the
VA's SCHEDULE FOR RATING DISABILITIES (hereinafter SCHEDULE),
codified in C.F.R. Part 4 (1993), which includes diagnostic codes
which represent particular disabilities.  The pertinent
diagnostic code and provisions will be discussed below as
appropriate.

Entitlement to service connection for schizophrenia, paranoid-
type was allowed by a February 1960 rating decision and a 30
percent evaluation was assigned.  The allowance was based upon
the veteran's service medical records and a VA examination in May
1960, which diagnosed the veteran with schizophrenic reaction,
paranoid-type.

Review of the history of the veteran's service-connected
psychiatric disorder reflects an increase in hospitalizations due
to this disorder beginning in 1971.  A 50 percent evaluation was
later assigned by a Board decision in March 1990, based upon VA
examinations and hospitalization reports which reflect continued
manifestations of the veteran's service-connected psychiatric
disorder, including delusional paranoid thinking.

The veteran was admitted in July 1990, at a community hospital
for an overdose of Benadryl and acute alcoholism.  A mental
health assessment at that time found the veteran was oriented to
time, place, person, and situation.  His mood was depressed and
his affect was flat.  Hallucinations, flight of ideas, and loose
associations were not found.  A delusion system was not present.
It was noted that the veteran's speech became rapid at times and
he complained of racing thoughts.  The veteran demonstrated good
remote memory and immediate recall.  The diagnoses included
impression of chronic, undifferentiated-type schizophrenia with
suicidal gesture, along with alcohol abuse.

The veteran was admitted to a VA hospital in October 1990, with
complaints of feeling nervous, tense, and "uptight."  The veteran
was coherent, anxious, apprehensive, and easily irritable at
times.  He admitted to periods of depression and auditory
hallucinations.  His speech was average and relevant, with some
degree of pressuring.  Orientation was reported as good, with
intellectual and memory function noted as adequate.  He denied
suicidal and homicidal ideations.  The veteran was discharged in
December 1990.  The diagnoses included schizophrenia, schizo-
affective type, with exacerbation.

A VA hospital report notes that the veteran was hospitalized from
January 1991 to March 1991, with a primary diagnosis of schizo-
affective type schizophrenia.  The veteran admitted to periods of
auditory hallucinations and delusional ideation.  Mental
examination revealed good orientation, with adequate intellectual
and memory functioning.  The veteran was subsequently
hospitalized in a VA facility from August 1991 to October 1991,
for his psychiatric disorder.  He complained of nervousness,
nightmares, and flashbacks, as well as situational stress.
Mental status examination revealed the veteran denied any
suicidal ideation but admitted to auditory hallucinations.  His
affect was sad, and his mood was noted as anxious.  He was
oriented to person, place, and time.  His insight was found to be
fair; his judgment impaired.  He had difficulty concentrating.
Memory for recent and remote events was reported as fair.  It was
noted that the veteran was not able to work.  The primary
diagnosis was schizophrenia, schizo-affective type, with paranoid
features.

A report by a fee-basis physician in November 1991, revealed that
the veteran had many complaints about his psychiatric disorder.
He constantly moved and fidgeted during the examination, and did
not make eye contact with the examiner.  The examiner reported
that the veteran did not have hallucinations or delusions during
the examination, nor did he have suicidal or homicidal ideations.
The examiner stated that the veteran's "near miss" answers on the
cognitive portion of the mental status examination were thought
to confirm that the veteran was feigning a psychiatric illness.
The examiner opined that the veteran was using his symptoms as a
means to avoid work and gain financial compensation.  The
examiner did note, however, that a factitious disorder with
psychological symptoms could not be completely ruled out.  The
diagnoses included malingering and a personality disorder.

From January 1992 to May 1992, the veteran was hospitalized at a
VA facility with complaints of nervousness, tension, insomnia and
restlessness.  He admitted to auditory hallucinations.  The
veteran demonstrated good eye contact, with acceptable behavior.
His speech was relevant and coherent.  His mood was depressed
with some tension and anxiety.  He was oriented in all spheres,
and his memory, insight, and judgment were fair.  The veteran's
main concern was auditory hallucinations.  The primary diagnosis
was schizophrenia, schizo-affective type.  Continued complaints
of sleep problems, anxiety, and depression were documented when
the veteran was hospitalized from August 1992 to October 1992 at
a VA facility.  It was noted that the veteran had a positive
attitude, good eye contact, was cooperative, and had an
acceptable behavior.  His speech production was relevant and
coherent.  However, the veteran displayed anxiety and depression.
He denied suicidal and homicidal ideations, as well as
hallucinations.  His memory, insight, and judgment were noted as
fair.  Although the original report found generalized anxiety
disorder with depression as the primary diagnosis, this was
amended to schizophrenia, schizo-affective type, associated with
generalized anxiety disorder with depression.

The veteran was admitted to a VA hospital in August 1993 as a
transfer from a local community hospital after he took an
overdose of his medication and alcohol.  The clinical assessment
was suicidal gesturing.  The veteran admitted to having auditory
hallucinations, as well as delusional ideations of a paranoid
nature.  He was anxious, apprehensive, and easily irritable.  His
speech was average and relevant.  His orientation was good.
Intellectual and memory functioning was noted as adequate, and
insight and judgment were fair.  The examiner found the veteran
socially and industrially impaired due to his problems.  The
primary diagnosis was schizophrenia, paranoid type "(psychosis)."

As noted above, the veteran's service-connected psychiatric
disorder is rated in accordance with the SCHEDULE.  Psychiatric
disorders are rated in accordance with the criteria outline in
38 C.F.R. � 4.132.  In this case, the veteran's psychiatric
disorder, schizophrenia, paranoid type, is rated under
38 C.F.R. � 4.132, Diagnostic Code 9405, which provides that a 50
percent evaluation represents considerable impairment of social
and industrial adaptability.  A 70 percent evaluation requires
manifestations which produce severe impairment in the ability to
establish and maintain effective or favorable relationships with
people and in the ability to obtain or retain employment.  Id.
In this case, the veteran's psychiatric disability has required
frequent periods of hospitalization, and has presented marked
interference with employment.  On this issue, the Board finds
that the positive and negative evidence in this case is in
equipoise, and therefore, resolves the benefit of the doubt in
the veteran's favor and assigns a 70 percent rating for
schizophrenia, paranoid-type.  38 U.S.C.A. � 5107 (b).

A schedular 100 percent evaluation requires that the attitudes of
all contacts except the most intimate are so adversely affected
by the disability as to result in virtual isolation in the
community.  Totally incapacitating psychoneurotic symptoms,
bordering on gross repudiation of reality, with disturbed thought
or behavioral processes associated with almost all daily
activities, such as fantasy, confusion, panic, and explosions of
aggressive energy resulting in profound retreat from mature
behavior, are present.  The veteran must also be demonstrably
unable to obtain or retain employment.  38 C.F.R. � 4.132,
Diagnostic Code 9502.  Psychiatric evaluations have revealed that
the veteran has a depressed mood and flat affect; however, his
insight and judgment were fair, and adequate memory and
intellectual functioning were found.  The veteran was considered
cooperative and oriented to time, place and person, with relevant
thought process.  These characteristics do not demonstrate that
the veteran's psychiatric manifestations are of such severity or
bizarreness so as to produce total social and industrial
inadaptability; and therefore, a higher evaluation under
Diagnostic Code 9205 is not warranted for his service-connected
psychiatric disability.

The Board in accord with precedent cases of the United States
Court of Veterans' Appeals must also consider the veteran's claim
for a total disability evaluation based on his service-connected
psychiatric disorder under the provisions of 38 C.F.R. � 4.16(c).
The evidence of record demonstrates that the veteran's
psychiatric disorder remains symptomatic, with concentration
impairment, continuing suicidal thoughts and gesturing, and
significant anxiety and depression.  The veteran has two years of
high school education and has not had a full-time job since
military discharge in 1958.

A social and industrial survey was conducted in June 1993, to
determine the feasibility of employment.  It was noted the last
time the veteran worked was in 1968; since that time he has tried
yard work and picking up cans on the side of the road.  He claims
shortness of breath closed his employment possibility.  The
veteran reported he is unable to focus for any period of time,
hears voices, and is frightened and jumpy.  He reported he has
lost the grip in both his hands.  The veteran noted he was so
depressed that he considered suicide as a means of getting away
from the voices he hears and pressures of not being able to
provide for his family.  The social worker noted that it was
unlikely that the veteran could function well enough to find, and
then maintain, any form of gainful employment.

The provisions of 38 C.F.R. � 4.16(c) provide that in cases in
which the only compensable service-connected disability is a
psychiatric disorder assigned a 70 percent evaluation, and the
disorder precludes that veteran from securing or following a
substantially gainful occupation, a 100 percent schedular
evaluation shall be assigned under the appropriate diagnostic
code.

In this case, recent clinical data indicate that the veteran
experiences hypertension, degenerative joint disease, and history
of carcinoma of the testicle with orchiectomy.  In spite of the
impact of the veteran's nonservice-connected disorders on his
overall ability to function, he has been hospitalized most
frequently due to his psychiatric disorder.  Review of the
record, therefore, demonstrates that although at least a portion
of the symptoms experienced by the veteran may be attributable to
the nonservice-connected disabilities, his service-connected
psychiatric disorder is productive of appreciable impairment.

The Board stresses that the principle of social and industrial
inadaptability as the basic criterion for rating disability from
the mental disorders contemplates those abnormalities of conduct,
judgment, and emotional reactions which produce impairment of
earning capacity.  38 C.F.R. � 4.129 (1993).  With this in mind,
the Board has reviewed the entire record, with due consideration
of the history of the veteran's service-connected disability and
recent clinical data.  Overall, the record represents an
approximate balance of positive and negative evidence regarding
the veteran's ability to obtain and retain substantially gainful
employment when one considers only his service connected
psychiatric disorder.  38 U.S.C.A. � 5107(b).  In such cases, all
doubt is resolved in favor of the veteran.  Id.  Accordingly,
with the benefit of the doubt accorded the veteran, entitlement
to a schedular 100 percent evaluation, in accordance with the
provisions of 38 C.F.R. � 4.16(c), is warranted.

II. Temporary Total Rating

A total disability rating, 100 percent, will be assigned without
regard to the provisions of the rating schedule when it is
established that a service-connected disability has required
hospital treatment in a VA or approved hospital for a period in
excess of 21 days or hospital observation at the VA's expense for
a service-connected disability for a period in excess of 21 days.
38 C.F.R. � 4.29.  Notwithstanding that a hospital admission was
for disability not connected with service, if during such
hospitalization, hospital treatment for a service-connected
disability is instituted and continued for a period in excess of
21 days, the increase to a total rating will be granted from the
first day of such treatment.  Id.

VA medical records show that the veteran was hospitalized from
August 31, 1992, to October 26, 1992.  It was noted that the
veteran sought treatment for nervousness and the inability to
sleep.  Records reflect that the veteran had a positive attitude,
good eye contact, was cooperative, and had an acceptable
behavior.  His speech production was relevant and coherent.
However, the veteran displayed anxiety and depression.  He denied
suicidal and homicidal ideations, as well as hallucinations.  His
memory, insight, and judgment were noted as fair.  Although the
original report found generalized anxiety disorder with
depression as the primary diagnosis, this was amended to
schizophrenia, schizo-affective type, associated with generalized
anxiety disorder with depression.  The VA medical center
submitted a 21 day certification, stating that the veteran had
been hospitalized for 21 consecutive days from August 31, 1992,
and that the major diagnosis was schizophrenia, schizo-affective
type.  Although  the veteran was treated for a variety of medical
problems, including anemia, cancer of the prostate, degenerative
joint disease, hypertension, and a lesion on a finger, it is
significant to note that the hospital officials and examiners
have determined schizophrenia as the primary diagnosis.  Thus, we
find the positive and negative evidence regarding this issue to
be in equipoise, and therefore, with the benefit of the doubt
afforded to the veteran, it is the judgment of the Board that the
veteran's service-connected disability required the institution
and continuation of treatment for a period in excess of 21 days.
38 U.S.C.A. � 5107 (West 1991); 38 C.F.R. � 4.29 (1993).

ORDER

A 70 percent schedular rating is granted.

A 100 percent evaluation for schizophrenia, paranoid type, under
38 C.F.R. � 4.16(c) is granted.  Entitlement to a temporary total
rating based on hospitalization from August 31, 1992, to October
26, 1992, is established.  The

benefits sought on appeal are allowed subject to the provisions
governing the payment of monetary benefits.

          E. W. SEERY
Member, Board of Veterans' Appeals

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

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


judge_norm: GARY L GICK

disposition: remanded

text:
BVA9415002
DOCKET NO.  92-23 660     )       DATE
          )
          )

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

THE ISSUE

Entitlement to an increased evaluation for an anxiety disorder,
currently evaluated as 30 percent disabling.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Robert P. Regan, Counsel

REMAND

The appellant had verified active duty from December 1945 to June
1947, with prior service of about 2 years and 6 months.

During a VA psychiatric examination in April 1992, the examiner
indicated that IQ testing would be of some value, apparently in
evaluating the appellant's psychiatric illness.  The recommended
testing was not conducted.  The United States Court of Veterans
Appeals (Court) has held on more than one occasion that an
examiner's recommendation for additional testing cannot be
ignored.

The appellant, during his hearing at the RO in March 1992,
testified that he had been awarded Social Security Administration
(SSA) disability benefits based, in part, upon his psychiatric
disorder.  The Court, in Murincsak v. Derwinski, 2 Vet.App. 363
(1992), held that an SSA decision awarding disability benefits
and the supporting medical records may contain pertinent evidence
to a VA claim.  Thus, even though the appellant apparently was
awarded SSA disability benefit during the early 1970's, the SSA
may have conducted periodic examinations over the years to
determine his continued entitlement to SSA disability benefits.
Additionally, the appellant indicated at his hearing that he
continues to receive treatment at a VA outpatient clinic for a
psychiatric illness.

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

1.  The RO should take the appropriate
action in order to obtain copies of the SSA
decision which granted the appellant
disability benefits, and all supporting
medical records which were utilized in
arriving at this decision as well as all
subsequent medical documents utilized in
determining his continued entitlement to
such benefits.

2.  The RO should obtain any additional
outpatient treatment records from the VA
medical facilities located in Gainesville
and Daytona Beach, Florida, for the period
from June 1992 up to the present time.

3.  A VA psychiatric evaluation should be
performed in order to determine the nature
and severity of the appellant's psychiatric
illness.  The examiner should review the
claims folder prior to the examination in
order to obtain a true picture of the
progress of the veteran's psychiatric
status.  After an assessment of the
appellant's clinical history, the examiner
should evaluate the appellant to determine
the nature and severity of all psychiatric
disorders which are present.  Primary per-
sonality disorders should be fully
described and classified.  If there are
different psychiatric disorders found on
examination, the psychiatrist should recon-
cile the diagnoses and specify which
symptoms are associated with each disorder.
All testing deemed necessary should be
performed; if an IQ test is not conducted,
the examiner should specifically stated
that such a test is not required to
properly evaluate the veteran's psychiatric
status.

Thereafter, the case should be reviewed by the RO.  If the
benefit sought is not granted, the appellant and his
representative should be furnished a supplemental statement of
the case and an opportunity to respond.  The case should then be
returned to the Board for further appellate consideration.

          GARY L. GICK
          Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1993).


judge_norm: STEPHEN L WILKINS

condition: neck

text:
BVA9416002
DOCKET NO.  92-53 548     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Anchorage, Alaska

THE ISSUES

1.  Entitlement to service connection for a cervical strain.

2.  Entitlement to service connection for cervical disc disease.

3.  Entitlement to service connection for cervical arthritis.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

M. F. Halsey, Counsel

INTRODUCTION

The veteran served on active duty from June 1959 to August 1963.

This case was before the Board of Veterans' Appeals (Board) in
May 1992 when it was remanded for additional development.
Although claims of service connection for mastoiditis of the left
ear, tinnitus, and defective hearing were before the Board in May
1992, these issues were granted by the RO in December 1993.
Consequently, further action as to these three issues is not
required.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has several problems with his neck
that are attributable to his period of military service.  More
specifically, it is maintained that, while he sustained a neck
injury in about 1978, his problems with cervical strain, cervical
disc disease, and cervical arthritis originated during military
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 in this matter, and
for the following reasons and bases, it is the decision of the
Board that evidence has not been presented to justify a belief by
a fair and impartial individual that any of the veteran's claims
are well grounded.

FINDING OF FACT

No competent evidence has been presented to show that the veteran
has a cervical strain, cervical disc disease or cervical
arthritis that can be attributed to disease or injury during his
period of service or to an already service-connected disability.

CONCLUSION OF LAW

The veteran has not presented well-grounded claims of service
connection for a cervical strain, cervical disc disease, or
cervical arthritis.  38 U.S.C.A. �� 1101, 1112, 1113, 1131, 1137,
5107, 7104 (West 1991); 38 C.F.R. �� 3.303, 3.307, 3.309 (1994).

REASONS AND BASES FOR FINDING AND CONCLUSION

The threshold question to be answered is whether the veteran has
presented well-grounded claims.  38 U.S.C.A. � 5107 (West 1991);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  Section 5107
provides that the claimant's submission of a well-grounded claim
gives rise to VA's duty to assist and to adjudicate the claim.
Id.  A well-grounded claim is defined as a "plausible claim, one
which is meritorious on its own or capable of substantiation."
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).  In short, VA is
not required to adjudicate a claim until after the veteran has
met his initial burden of submitting a well-grounded one.

"Although the claim need not be conclusive, the statute [� 5107]
provides that [the claim] must be accompanied by evidence" in
order to be considered well grounded.  Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992).  In a claim of service connection,
this means that evidence must be presented which in some fashion
links the claimed disability to a period of military service or
an already service-connected disability.  38 U.S.C.A �� 1110,
1131 (West 1991); 38 C.F.R. �� 3.303, 3.310 (1993); Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992).  Lay assertions of medical
causation do not constitute competent evidence to render a claim
well grounded.  Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).

The evidence in the veteran's case shows that he fell and injured
his low back during service--in April 1960.  While records show
that, on April 21, 1960, he complained pain that radiated to his
left shoulder and neck, no neck disability was diagnosed, even
after nearly a month-long hospitalization beginning April 26,
1960.  His service records also show that he sustained injuries
in motor vehicle accidents in May 1962 and in August 1962, but no
neck disability was identified on either occasion.  (The Board
notes that the RO has determined by an April 1991 administrative
decision that injuries sustained in the August 1962 accident were
the result of misconduct.  However, there being no showing of a
neck injury associated with this accident, it is not necessary to
evaluate the propriety of the line-of-duty determination.)  When
the veteran was examined by the service department in July 1963,
no neck problem was noted.

Records received after the veteran's military service include a
November 1989 examination report prepared for VA.  This report
shows that the veteran gave a history of having injured his neck
in 1978.  However, he said that he had experienced certain
problems with his left arm prior to the 1978 injury.  An X-ray
report prepared in November 1989 shows that the veteran had an
anterior fusion from C5 to C7.  Spondylosis involving C4-5 with
prominent osteophytes projecting into neuroforamina at C4-5 and
at C5-6 was noted.

The veteran was again examined for VA in October 1990.  Then, it
was noted that the veteran had multiple orthopedic complaints,
including neck pain.  He gave a history of having injured his
neck in an automobile accident in about 1961.  He also reported
that he underwent an anterior cervical fusion in 1978 that was
required because of a compression-type injury in 1977.  The
diagnoses included cervical fusion of the lower cervical spine
with degenerative changes above the level of the fusion.  The
examiner noted that he had not been given any records to review.

The evidence described above shows that the veteran indeed has a
neck disability, but nothing about it, except the veteran's own
assertions, relates the disability to military service or to an
already service-connected disability.  The veteran's service
medical records do not show a diagnosis of any neck problem and
none is otherwise shown until many years after service.  Even
when a neck disability was identified in 1989 and 1990
examination reports, the etiology described by the examiners
appears to have been a 1977 or 1978 injury.  The only opinion
ascribing current neck disabilities to military service is the
veteran's.  This opinion is repeated in the October 1990
examination report, but clearly appears merely as a recitation of
the veteran's own statement to the examiner, not as a considered
medical opinion by the physician.  This is so because the
examiner pointed out that he had been given no records to review.
The veteran's opinion, as reiterated by the October 1990
examiner, is not competent evidence.  Espiritu v. Derwinski,
2 Vet.App. 492, 495 (1992).

Absent the presentation of competent evidence attributing a neck
disability to military service or to an already service-connected
disability, the veteran's claims may not be considered well
grounded.  It should also be noted that a presumption of service
connection arises in claims of service connection for arthritis
if evidence is presented showing that it existed to a compensable
degree within one year of the veteran's release from active duty.
�� 3.307, 3.309.  However, no evidence was presented on this
point.

Since the Board does not have jurisdiction to adjudicate claims
that are not well grounded, the veteran's appeal must be
dismissed.  Boeck v. Brown, 6 Vet.App. 14 (1993).

ORDER

A claim of service connection for a cervical strain, cervical
disc disease, or cervical arthritis is not well grounded;
therefore, the veteran's appeal is dismissed.

          STEPHEN L. WILKINS
          Member, Board of Veterans' Appeals

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

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


judge_norm: SAMUEL W WARNER

text:
BVA9417002
DOCKET NO.  91-15 384     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Francisco,
California

THE ISSUE

Entitlement to service connection for a chronic bilateral
shoulder disability.

REPRESENTATION

Appellant represented by:  Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Lawson, Counsel

REMAND

The appellant, a veteran, had over 13 years of post-Vietnam era
service which terminated in July 1990.  The San Francisco,
California Department of Veterans Affairs (VA) Regional Office
(RO) denied the benefits sought in August 1990, and the Board of
Veterans' Appeals (Board) remanded the case to the RO in July
1991 for verification of periods of active service and VA
examinations.  The issue of an increased disability for right
ulnar nerve decompression was allowed and the claims file was
returned to the Board for further appellate consideration on the
remaining issue.  The representative pointed out in August 1991
that the appellant had received ongoing treatment for shoulder
complaints between 1985 and 1989 in service, and thereafter the
appellant was treated mainly for residuals of a serious motor
vehicle accident.  The representative points out that the recent
VA examination report of November 1991 indicates that on one
X-ray view of the right shoulder, there was a density which might
possibly represent a small loose body in the right shoulder
joint.  X-rays of the left shoulder were not obtained, although
most of the complaints and treatment had involved the left
shoulder.  Further evaluation was requested if favorable
appellate action could not be taken.

In order to assist the appellant, the case is REMANDED to the RO
for the following development:

1.  The RO should request the appellant to
indicate whether and where he has received
any shoulder treatment since July 1990
service discharge, and then it should
obtain copies of any such pertinent medical
records and incorporate them into the
claims folder.  This should include any VA
or Letterman Army hospital outpatient
records after November 1991.

2.  Thereafter, the veteran should be
accorded another VA orthopedic examination
with any indicated special testing such as
magnetic resonance imaging (MRI) or similar
study more diagnostic than X-rays for both
of the appellant's shoulders.  The examiner
should review the service medical records
of treatment that between 1985 and 1990 and
any post-service medical records of
treatment he received, and whether the
veteran has any chronic shoulder disability
or disabilities, the nature thereof, and
when they had their onset.  An opinion with
supporting reasons in reference to the
above matters is requested.  The claims
folder should be made available to the
orthopedist for review before the
examination, if possible.

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.

          SAMUEL W. WARNER
          Member, Board of Veterans' Appeals

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

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1993).


judge_norm: JACQUELINE E MONROE

condition: knee

text:
BVA9419002
DOCKET NO.  93-02 710     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Chicago,
Illinois

THE ISSUE

Entitlement to an increased evaluation for a left knee
disability, currently rated as 20 percent disabling.

ATTORNEY FOR THE BOARD

John D. Nachmann, Associate Counsel

INTRODUCTION

The veteran had active military service from January 1983 to
January 1987.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a rating decision of June 1992 by the Department
of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO).

In his substantive appeal, the veteran raised the issue of
entitlement to an effective date prior to May 5, 1992, for a 20
percent evaluation for a left knee disability.  This issue has
not been developed or certified for appellate consideration and
is therefore referred to the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the RO was incorrect in not granting
his claim of entitlement to an increased evaluation for a left
knee disability.  He maintains that the currently assigned
evaluation does not accurately reflect the severity of this
disability as it significantly limits his daily activities and
employment opportunities.  Therefore, he requests a favorable
determination by the Board.

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 in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence supports the assignment of a 30 percent
evaluation for the veteran's left knee disability.

FINDINGS OF FACT

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

2.  The current manifestations of the veteran's left knee
disability include laxity, capsular thickening, muscle atrophy,
weakness, and complaints of pain.

3.  The veteran's left knee disability is productive of severe
functional impairment.

CONCLUSION OF LAW

The criteria for an evaluation of 30 percent for a left knee
disability have been met.  38 U.S.C.A. �� 1155, 5107 (West 1991);
38 C.F.R. �� 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code
5257 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran has submitted a well-grounded claim within the
meaning of 38 U.S.C.A. � 5107(a).  See Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55
(1990).  That is, the Board finds that he has submitted a claim
which is plausible.  The Board is also satisfied that all
relevant evidence necessary for an equitable disposition of the
veteran's appeal has been obtained and that no further assistance
is required to comply with the duty to assist him mandated by
38 U.S.C.A. � 5107(a).  In this regard, the Board notes that
although a letter from the veteran received in November 1992
contains the statement "I feel I should have a higher disability
and new evidence is available," he failed to indicate the nature
of this evidence or its relevance, if any, to the issue on
appeal.  In addition, although the veteran has repeatedly
asserted that four of his left knee ligaments were damaged during
service (as opposed to the three noted in various VA
examinations), he has never provided evidence to substantiate
this assertion, even when asked to do so during his most recent
June 1992 VA examination.

The service medical records indicate that the veteran injured his
left knee while playing football in August 1986.  Mild swelling
of the knee with tenderness in the medial and posterior aspects
was noted.  An x-ray revealed no fractures or dislocations and an
assessment of left knee strain was recorded.  The veteran
continued to seek treatment for his left knee and ligament
laxity, tenderness, and mild effusion were subsequently found.

The report of an April 1988 VA examination indicates that
although no joint effusion of the left knee was found, there was
a minimal amount of capsular thickening with marked laxity of the
lateral collateral ligament and to a lesser extent, laxity of the
medial collateral ligament.  The anterior drawer sign was
positive, but the McMurray sign could not be demonstrated.  Mild
rotatory instability and atrophy of the left quadriceps were
noted.  The veteran's gait and station were within normal limits
as was the range of motion of the left knee.  Arterial pulses
were equal and no sensory or motor imbalances were present.  An
x-ray showed no abnormalities of the veteran's left knee.  The
examiner rendered a diagnosis of symptomatic moderately severe
internal derangement of the left knee.

By decision in March 1989, the RO granted service connection for
internal derangement of the left knee and assigned this
disability a 10 percent rating.

The report of a May 1990 VA examination shows that the veteran's
gait and station were within normal limits.  He was able to stand
on his toes and heels without difficulty and mild quadriceps
atrophy of one-quarter of an inch was noted.  The range of motion
of the knee was within normal limits and laxity of both the
lateral and medial collateral ligaments was found.  In addition,
laxity of the anterior cruciate ligament was manifested with an
anterior drawer sign.  There was mild rotatory instability and
capsular thickening, but no joint effusion.  An x-ray revealed no
evidence of a fresh fracture, dislocation, subluxation, or bony,
joint, or soft tissue abnormalities.  A diagnosis of symptomatic
moderately severe internal derangement of the left knee was
recorded.

The report of a June 1992 VA examination demonstrates that the
veteran had a limp on the left lower leg which favored that knee
when he walked.  Atrophy of the left leg in the mid-calf area was
two inches and at five inches above the knee, muscle atrophy was
measured at one inch.  Laxity of the lateral collateral, medial
collateral, and anterior cruciate ligaments was found.  Mild
rotatory instability was still present as was capsular
thickening.  The knee and ankle reflexes were equal bilaterally
and three plus.  There was no limitation of motion or fluid
effusion.  The strength of the left lower extremity was slightly
weakened when compared to the right.  The only abnormality
revealed by an x-ray was a three millimeter lateral femoral
supracondylar bone island.  The examiner rendered a diagnosis of
moderately severe internal derangement of the left knee with
subjective symptoms of pain still noted.

By decision in June 1992, the RO increased the evaluation
assigned to the veteran's left knee disability from 10 percent to
20 percent under the provisions of 38 C.F.R. � 4.71a, Diagnostic
Code 5257.  Such an evaluation contemplates moderate knee
impairment with recurrent subluxation or lateral instability.
The next higher evaluation, a 30 percent rating, requires severe
knee impairment with recurrent subluxation or lateral
instability.

Upon a review of the evidence of record, the Board concludes that
a question exists as to whether a 20 percent or a 30 percent
evaluation should be assigned in this case.  In this regard, the
Board notes that although the veteran has no limitation of motion
or effusion of the left knee, he does have significant muscle
atrophy of the left leg, especially in the mid-calf area.  Even
the term "moderately severe," which has consistently been used to
describe the veteran's left knee disability, creates doubt as to
the degree of the veteran's impairment.  These factors, coupled
with the findings of anterior cruciate, lateral collateral, and
medial collateral ligament laxity; rotatory instability; capsular
thickening; weakness of the left leg; and a recently-discovered
lateral femoral supracondylar bone island, further add to the
indefiniteness of the level of the veteran's impairment.
Resolving all reasonable doubt in the veteran's favor, the Board
concludes that a 30 percent evaluation most nearly approximates
the veteran's current disability picture.  See 38 C.F.R. �� 4.3,
4.7.

In reaching its decision, the Board has considered the complete
history of the disability in question as well as the current
clinical manifestations and the effect the disability may have on
the earning capacity of the veteran.  38 C.F.R. �� 4.1, 4.2,
4.41.  Further, the Board finds in this case that the disability
picture is not so exceptional or unusual so as to warrant an
evaluation on an extra-schedular basis.  It has not been shown
that the veteran's left knee disability has caused marked
interference with employment or necessitated frequent periods of
hospitalization so as to render impractical the application of
the regular schedular standards.  38 C.F.R. � 3.321(b)(1).

ORDER

Subject to the laws and regulations governing the payment of
monetary benefits, a 30 percent evaluation for a left knee
disability is granted.

          JACQUELINE E. MONROE
          Member, Board of Veterans' Appeals

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

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