Citation Nr: 9934189	
Decision Date: 12/08/99    Archive Date: 12/16/99

DOCKET NO.  89-17 986	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to service connection for back disability.  
2. Entitlement to service connection for sinusitis.  
3. Entitlement to service connection for glaucoma.  
4. Entitlement to service connection for pyogenic granuloma.  
5. Entitlement to service connection for disability due to 
parasite bites.  
6. Entitlement to service connection for actinic keratosis 
due to exposure to ionizing radiation.  
7. Entitlement to service connection for verruca vulgaris due 
to exposure to ionizing radiation.  
8. Entitlement to service connection for arthritis of 
multiple joints including the cervical spine due to 
exposure to ionizing radiation.  
9. Entitlement to service connection for disability of right 
brain and right eye due to exposure to ionizing radiation.  
10. Entitlement to service 
connection for nervous system disability due to exposure 
to ionizing radiation.  
11. Entitlement to service 
connection for esophagitis reflux due to exposure to 
ionizing radiation.  
12. Entitlement to service 
connection for abdominal spasm due to exposure to ionizing 
radiation.  
13. Entitlement to service 
connection for disability manifested by abnormally high 
lipase reading due to exposure to ionizing radiation.  
14. Entitlement to service 
connection for calcification of the spleen with chronic 
inflammation due to exposure to ionizing radiation.  
15. Entitlement to service 
connection for pancreatitis due to exposure to ionizing 
radiation.  
16. Entitlement to service 
connection for cholecystitis and cholelithiasis with 
cholecystectomy due to exposure to ionizing radiation.  
17. Entitlement to service 
connection for liver disability due to exposure to 
ionizing radiation.  
18. Entitlement to service 
connection for urinary tract infection due to exposure to 
ionizing radiation.  
19. Entitlement to service 
connection for cystitis of the bladder due to exposure to 
ionizing radiation.  
20. Entitlement to service 
connection left renal cyst due to exposure to ionizing 
radiation.  
21. Entitlement to service 
connection for diverticulosis due to exposure to ionizing 
radiation.  
22. Entitlement to service 
connection for genetic defects due to exposure to ionizing 
radiation. 
23. Entitlement to service 
connection for bronchitis.  
24. Whether new and material 
evidence has been submitted to reopen a claim of 
entitlement to service connection for otitis media.  
25. Entitlement to a compensable 
rating for hemorrhoids and anal fissure.  
26. Entitlement to a compensable 
rating for prostatitis.  
27. Entitlement to a compensable 
rating for bilateral pleural plaques with interstitial 
changes, asbestosis and silicosis.  
28. Entitlement to a total rating 
based on unemployability due to service-connected 
disabilities.  
29. Entitlement to payment or 
reimbursement of the cost of unauthorized outpatient 
treatment on October 3, 1990, and October 9, 1990, through 
November 2, 1990.  
30. Entitlement to payment or 
reimbursement of the cost of unauthorized private 
hospitalization from November 7, 1990, to November 14, 
1990.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nancy S. Kettelle, Counsel


INTRODUCTION

The veteran had active service from July 1951 to July 1955, 
August 1955 to August 1961 and November 1961 to February 
1971.  

This matter came to the Board of Veterans' Appeals (Board) on 
appeal from rating decisions of the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, 
and determinations of the Medical Administration Service 
(MAS) at the VA Medical Center in Bay Pines, Florida.  The 
case was last before the Board in February 1996, and it has 
been returned to the Board for further appellate 
consideration.  

In its decision dated in February 1996, the Board determined 
that new and material evidence had not been submitted to 
reopen the claim of entitlement to service connection for 
hypertension.  In the decision, the Board also denied service 
connection for pulmonary tuberculosis, service connection for 
kidney infections, and service connection for gallbladder 
cancer due to exposure to ionizing radiation.  The Board also 
denied an increased (compensable) rating for bilateral 
hearing loss.  In a statement received at the RO in September 
1996, the veteran stated that he was requesting reopening of 
the issue of hypertension, pulmonary tuberculosis, kidney 
infection, gallbladder due to radiation and bilateral hearing 
loss.  The veteran's meaning in his use of the phrase 
"gallbladder due to radiation" is not clear as the prior 
denial was for service connection for gallbladder cancer due 
to exposure to ionizing radiation and the current appeal 
includes the issue of entitlement to service connection for 
cholecystitis and cholelithiasis with cholecystectomy due to 
exposure to ionizing radiation.  The RO should ascertain 
whether the veteran is seeking to reopen the previously 
denied claim of service connection for gallbladder cancer due 
to radiation.  In any event, those matters not currently in 
appellate status are referred to the RO for action as 
appropriate.  

As to the matters currently before the Board, the issues of 
entitlement to service connection for back disability, 
entitlement to a total rating based on unemployability due to 
service-connected disabilities and the reimbursement claims 
will be addressed in the remand that follows this decision.  


FINDINGS OF FACT

1. The claim for service connection for sinusitis is not 
plausible.  
2. The claim for service connection for glaucoma is not 
plausible.  
3. The claim for service connection for pyogenic granuloma is 
not plausible.  
4. The claim for service connection for disability due to 
parasite bites is not plausible.  
5. The claims for service connection for actinic keratosis, 
verruca vulgaris, arthritis of multiple joints including 
the cervical spine, disability of right brain and right 
eye, nervous system disability, esophagitis reflux, 
abdominal spasm, disability manifested by abnormally high 
lipase reading, calcification of the spleen with chronic 
inflammation, pancreatitis, cholecystitis and 
cholelithiasis with cholecystectomy, liver disability, 
urinary tract infection, cystitis of bladder, left renal 
cyst, diverticulosis, and genetic defects due to exposure 
to ionizing radiation in service are not plausible.  
6. Chronic bronchitis is not shown.  
7. The Board denied the veteran's claim for service 
connection for otitis media in a May 1980 decision; 
evidence added to the record since the May 1980 decision 
is not so significant that it must be considered to fairly 
decide the merits of the claim.  
8. Prior to December 20, 1994, the veteran's hemorrhoids were 
no more than moderate; from December 20, 1994, until 
surgery in March 1996, the veteran's hemorrhoids were 
accompanied by an anal fissure; since the completion of 
convalescence on April 17, 1996, from the March 1996 
surgery, the veteran's service-connected disability is 
manifested by an asymptomatic scar from the surgery and 
the hemorrhoids that are no more than mild.  
9. The veteran's prostatitis is manifested primarily by 
intermittent episodes of increased frequency of urination 
and dysuria; the prostatitis is not manifested by chronic 
diurnal or nocturnal frequency or pyuria, nor does it 
cause more than infrequent episodes of awakening to void 
two or more times per night.  
10. The veteran's service-connected pulmonary disability is 
manifested primarily by bilateral pleural scarring and 
dyspnea on moderate exertion; pulmonary function tests 
have shown forced vital capacity (FVC) predominately from 
75 to 80 percent predicted.  


CONCLUSIONS OF LAW

1. The claim for service connection for sinusitis is not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).  
2. The claim for service connection for glaucoma is not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).  
3. The claim for service connection for pyogenic granuloma is 
not well grounded.  38 U.S.C.A. § 5107(a) (West 1991).  
4. The claim for service connection for disability due to 
parasite bites is not well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).  
5. The claims for service connection for actinic keratosis, 
verruca vulgaris, arthritis of multiple joints including 
the cervical spine, disability of right brain and right 
eye, nervous system disability, esophagitis reflux, 
abdominal spasm, disability manifested by abnormally high 
lipase reading, calcification of the spleen with chronic 
inflammation, pancreatitis, cholecystitis and 
cholelithiasis with cholecystectomy, liver disability, 
urinary tract infection, cystitis of bladder, left renal 
cyst, diverticulosis, and genetic defects due to exposure 
to ionizing radiation are not well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).  
6. Bronchitis was not incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. 
§ 3.303 (1999).  
7. Evidence received since the May 1980 Board decision 
denying service connection for otitis media is not new and 
material, and the claim for service connection for otitis 
media is not reopened.  38 U.S.C.A. § 5108 (West 1991); 
38 C.F.R. § 3.156(a) (1999).  
8. Prior to December 20, 1994, the criteria for a compensable 
rating for hemorrhoids were not met; the criteria for a 20 
percent rating for hemorrhoids with anal fissure were met 
from December 20, 1994, to April 17, 1996; since then, the 
criteria for a compensable rating for hemorrhoids with 
anal fissure have not been met.  38 U.S.C.A. § 1155 (West 
1991); 38 C.F.R. § 4.114, Diagnostic Code 7336 (1999).  
9. The criteria for a compensable rating for prostatitis have 
not been met.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 
§ 4.115a, Diagnostic Code 7527 (1993); 38 C.F.R. 
§§ 4.115a, 4.115b, Diagnostic Code 7527 (1999).  
10. The criteria for a 10 percent rating for bilateral 
pleural plaques with interstitial changes, asbestosis and 
silicosis, have been met.  38 U.S.C.A. § 1155 (West 1991); 
38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6801 (1995); 
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection

Service connection may be granted for disability resulting 
from disease or injury incurred or aggravated during service.  
38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 
(1999).  Service connection may be granted for any disease 
initially diagnosed after discharge from service, when all 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d).  

With chronic disease shown as such in service so as to permit 
a finding of service connection, subsequent manifestations of 
the same chronic disease at any later date, however, remote, 
are service connected, unless clearly attributable to 
intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing 
of chronic disease in service, there is required a 
combination of manifestations sufficient to identify the 
disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated 
findings or a diagnosis including the word chronic.  Id.  
Continuity of symptomatology is required where the condition 
noted during service is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  Id.  When the fact of chronicity in service is 
not adequately supported, then a showing of continuity after 
discharge is required to support the claim.  Id.  

As a preliminary matter, the Board must determine whether the 
veteran has presented evidence of a well-grounded claim, that 
is, whether he has presented a claim that is plausible and 
meritorious on its own or capable of substantiation.  
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 8 
(1990); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. 
Derwinski, 2 Vet. App. 609 (1992).  

The United States Court of Appeals for Veterans Claims 
(Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) 
unequivocally places an initial burden on a claimant to 
produce evidence that a claim is well grounded.  See Grivois 
v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 
610-11.  To satisfy the burden of establishing a well-
grounded claim, there must be:  (1) a medical diagnosis of a 
current disability; (2) medical, or in certain circumstances, 
lay evidence of in-service incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between an inservice injury or disease and the current 
disability.  Where the determinative issue involves medical 
causation or diagnosis, competent medical evidence to the 
effect that the claim is plausible is required.  Epps v. 
Gober, 126 F.3d 1464 (Fed. Cir. 1997).  A claim also may be 
well grounded if the condition is observed during service, 
continuity of symptomatology is demonstrated thereafter and 
competent evidence relates the present condition to that 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 497 
(1997).  

If the veteran has not submitted evidence of a well-grounded 
claim, the claim must fail, and VA has no duty to assist the 
veteran in the development of the claim, including providing 
a medical examination and opinion.  See Epps, supra; Caluza 
v. Brown, 7 Vet. App. 498, 504 (1995).  

Sinusitis

The veteran's service medical records show that on various 
occasions he was seen with complaints of headaches, head and 
chest colds and postnasal drip, but at no time was he 
diagnosed as having sinusitis.  The veteran retired from 
service in February 1971.  At a hearing in March 1991, the 
veteran testified that his sinusitis started approximately 
February 18, 1971, (one day before his retirement from 
service) and that he received treatment for it on a 
continuous basis at the Jacksonville naval hospital family 
practice clinic from 1971 through 1987.  Post-service 
treatment records show that at some time between separation 
from service in February 1971 and December 1971, the veteran 
was seen at a naval clinic with complaints of sore throat and 
chest cold.  The impression after examination was sinusitis 
with post-nasal drip.  

Later records show that naval clinic X-rays showed maxillary 
sinusitis in January 1977.  In August 1979, a private 
physician noted sinusitis in review of systems.  In September 
1987, Dr. Castelli noted that veteran reported he had been 
told he had recurrent sinusitis.  The physician stated that 
X-rays indicated chronic mucosal thickening in both maxillary 
sinuses.  After examination, diagnoses included history of 
recurrent maxillary sinusitis, chronic, clinically inactive.  
In January 1989, Dr. Castelli noted the veteran had not had 
problems with recurrent sinus infections.  After examination, 
the diagnosis included history of recurrent episodes of 
maxillary sinusitis, left, resolved, with no chronic disease.  
Dr. Castelli commented that he saw no evidence of chronic 
sinus disease requiring any further treatment by him.  A VA 
X-ray sinus series in August 1990 showed no evidence of 
sinusitis.  In October 1990, after being seen with complaints 
of post-nasal drip and cough with occasional production of 
greenish sputum, the assessment was sinusitis; in December 
1990, after complaints including nasal congestion, the 
assessment included sinusitis.  

In an April 1993 Family Diagnostic Center, Inc., review of 
outside X-ray films, the impression reported was changes 
compatible with acute or chronic ethmoid and left maxillary 
sinusitis.  Dr. Ruggiero noted these results in clinical 
records dated in April 1993, and his impression after 
clinical examination included low-grade rhinosinusitis.  When 
the veteran was seen by Dr. Ruggiero in September 1994, his 
complaints included some drainage in the back of his throat.  
The impression after examination included acute and chronic 
rhinosinusitis.  In February 1995, the veteran gave a history 
of 3 to 4 days of fever, sinus pain, congestion, 
non-productive cough and shortness of breath.  The examiner 
noted a dry cough, mild tenderness of the maxillary sinuses, 
serous otitis both ears, and nasal congestion.  The initial 
assessment was bilateral pneumonia; at a primary care clinic 
the following day the physician's assessment was 
sinobronchitis.  Private medical records show that in August 
1996 the veteran complained of post-nasal drip, and there was 
right maxillary tenderness.  The physician prescribed 
medication for sinusitis.  

Although the veteran essentially contends that his complaints 
of headaches, head and chest colds and postnasal drip in 
service were symptoms of chronic sinusitis, he, as a lay 
person is not competent to provide medical opinions or 
diagnoses.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  The record does show the veteran was diagnosed as 
having sinusitis within months after service, and the veteran 
has asserted continuing symptoms and treatment at the 
Jacksonville naval hospital clinic from 1971 to 1987 and 
continuing private treatment thereafter.  On at least two 
occasions, the RO has requested that the Jacksonville naval 
hospital provide clinic records from 1971 onward; however, 
information received from that facility does not include the 
requested records.  The available evidence shows X-ray 
evidence of maxillary sinusitis in 1977 and sinusitis noted 
in a review of systems in 1979.  Later records show diagnoses 
of inactive chronic sinusitis in 1987, and in 1989 there was 
a diagnosis of history of recurrent episodes of left 
maxillary sinusitis, resolved with no chronic disease.  There 
are clinical records and reference to X-rays in the 1990s 
showing acute and chronic sinusitis.  However, there is no 
medical evidence linking the veteran's sinusitis to service 
or to the claimed continuous symptomatology.  In the absence 
of such evidence, the claim for service connection for 
sinusitis is not well grounded.  

The Board notes that the veteran has also contended that his 
sinusitis is due to exposure to asbestos in service.  He has, 
however, presented no medical or scientific evidence in 
support of this contention, and he, as a lay person, is not 
competent to provide such an opinion.  See Espiritu at 494-
495.  Upon review of record, the Board finds the claim for 
service connection for sinusitis is not plausible and 
concludes it must be denied as not well grounded.  

Glaucoma

Review of the evidence shows that the veteran's service 
medical records do not document the presence of glaucoma.  
Medical evidence of record shows diagnosis of glaucoma more 
than 15 years after the veteran's retirement of service, and 
there is no medical evidence relating the glaucoma to 
service.  The veteran contends that his glaucoma is due to 
in-service exposure to asbestos, fiber glass and silica sand, 
which irritated the drainage tubes in his eyes.  In December 
1994 the veteran asserted that he had sent in pamphlets from 
the American Cancer Society proving this.  When it reviewed 
the file in 1996, the Board was unable to find the pamphlets 
referred to by the veteran and in the February 1996 remand 
requested that the veteran resubmit those materials.  The 
veteran did not submit any document from the American Cancer 
Society, but he did submit three brochures from the American 
Lung Association.  They discuss asbestos, silicosis and 
fiberglass.  The brochures concerning asbestos and silicosis 
make no reference to the eyes.  The brochure titled "Facts 
about Fiberglass" states that "[d]irect contact with 
fiberglass materials or exposure to airborne fiberglass dust 
may irritate the skin, eyes, nose and throat."  The brochure 
does not, however, make any connection between exposure to 
fiberglass and glaucoma, and the statement that exposure to 
fiberglass may irritate the eyes does not provide a basis for 
drawing that conclusion.  The only evidence linking the 
veteran's glaucoma to service is the theory advanced by the 
veteran himself.  However, the veteran, as a lay person, is 
not competent to provide evidence requiring medical 
expertise.  See Espiritu at 494.  

Since the veteran was not found to have glaucoma in service, 
there is no post-service medical evidence of glaucoma until 
more than 15 years following the veteran's retirement from 
service, and there is no medical evidence that in any way 
links the veteran's glaucoma to service, the Board must 
conclude that the veteran's claim is not well grounded and 
must be denied.  

Pyogenic granuloma

The veteran's service medical records do not mention pyogenic 
granuloma.  Review of the evidence shows that the veteran has 
submitted medical evidence of a diagnosis of pyogenic 
granuloma in August 1973, more than two years after service, 
and he has submitted photocopies of a sheet on which appear 
hand-written definitions.  No reference is made to the source 
or authority for the definitions.  On the sheet pyogenic is 
defined as "pus forming as pyogenic bacteria."  Granuloma 
is defined as "an area of chronic inflammation in which 
granulation tissue is present.  Caused by parasite bites, 
fungi, and certain bacteria can induce the formation of a 
granuloma."  The medical records show that in August 1973 
the veteran complained of a skin tag on his back, which on 
removal and microscopic examination was diagnosed as pyogenic 
granuloma of skin of the back.  The pathology report noted 
the veteran reported the skin tag had been present for 
several months.  On clinical follow-up the physician noted it 
had healed nicely and pathology was negative.  The record 
includes no medical opinion as to the etiology of the 
veteran's pyogenic granuloma, and although the veteran has 
stated that he has more of these on his back, he has 
presented no medical evidence of current disability.  Thus, 
the evidence presented does not render the claim for service 
connection for pyogenic granuloma well grounded, and it must 
be denied.  


Parasites

The veteran contends that while in service he was exposed to 
parasites in 1957 when his ship was in the Persian Gulf area 
and ports of call were:  Port Sudan; Massawa, Ethiopia; and 
Djibouti, French Sommaliland.  He states that he spent a lot 
of time above deck and that during this time he was bitten by 
all types of parasites around the clock.  The veteran 
submitted copies of his ship's history confirming his 
statements about his ship's activities and ports of call in 
1957.  He asserts that VA cannot prove that he was not 
subjected to parasite bites and contends that he should be 
rated service connected for parasite bites.  

Review of the evidence shows that the veteran's service 
medical records include no reference to parasite bites or 
disability due to parasite bites, and there is no post-
service medical diagnosis of a current disability due to 
parasite bites.  The Board notes that in his correspondence 
the veteran has seemingly used the term pyogenic granuloma 
interchangeably with the word parasites.  For example, when 
discussing the August 1973 pathology report in which the 
diagnosis was pyogenic granuloma of skin of back, the veteran 
said, "I've been advised that there appears to be about 14 
more of these parasites on my back alone not counting the 
rest of my body."  Also, on one of the photocopies of his 
presentation of definitions of granuloma, quoted earlier, 
listing parasites among the causes, the veteran underlined 
the word parasites.  To the extent that the veteran is 
arguing that pyogenic granuloma is the disability resulting 
from parasite bites to which he was exposed in service, he is 
advancing a theory requiring medical expertise, which he, as 
a lay person, is not qualified to do.  See Espiritu at 494.  
At any rate, the veteran has presented no evidence of current 
disability, either pyogenic granuloma or any other disability 
due to parasite bites, and the claim separately adjudicated 
as entitlement to service connection for disability due to 
parasite bites must also be denied as not well grounded.  




Radiation claims

With respect to claims for service connection of disability 
due to exposure to ionizing radiation, service connection for 
certain diseases may be granted on a presumptive basis if the 
veteran is shown to have the disease and participated in a 
"radiation-risk" activity as defined in 38 U.S.C.A. 
§ 1112(c) (West 1991 & Supp. 1999) and 38 C.F.R. § 3.309(d) 
(1999).  Also, as noted by the Board in its February 1996 
remand, during the pendency of this appeal, the United States 
Court of Appeals for the Federal Circuit (Federal Circuit) 
determined that section 5 of the Veterans' Dioxin and 
Radiation Exposure Compensation Standards Act, Pub. L, No. 
98-542, 98 Stat. 2725, 2727-29 (1984) did not preclude, or 
authorize VA to preclude, a claimant from proving that the 
claimed disability resulted from exposure to ionizing 
radiation in service under the provisions of 38 U.S.C.A. 
§ 1110 and 38 C.F.R. § 3.303(d), despite the fact that the 
disability is not a potentially radiogenic disease under 
38 C.F.R. § 3.111b (now § 3.311).  Combee v. Brown, 34 F.3d 
1039 (Fed. Cir. 1994), reversing in part Combee v. Principi, 
4 Vet. App. 78 (1993).  In such cases, a claimant must be 
given an opportunity to prove that exposure to ionizing 
radiation during service actually caused the disability or 
disabilities for which he or she is claiming service 
connection, and that service connection is therefore 
warranted under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. 
§ 3.303(d).  

In response to the Federal Circuit decision, VA amended 
38 C.F.R. § 3.311 effective September 1, 1994.  60 Fed. Reg. 
9627-28 (1995).  The amendment redefined the term 
"radiogenic disease" as a disease that may be induced by 
ionizing radiation and provided that if a claim is based on a 
disease not listed in the regulation as a recognized 
radiogenic disease, VA shall nevertheless consider the claim 
under the provisions relating to radiogenic diseases if the 
claimant cites or submits competent scientific or medical 
evidence that the claimed condition is a radiogenic disease.  
60 Fed. Ref. 9627 (codified at 38 C.F.R. § 3.311(b)(4)).  

The veteran contends that he has multiple disabilities that 
are due to exposure to ionizing radiation during his 
participation in Operation CASTLE in service.  The veteran's 
service records confirm his participation in Operation 
CASTLE.  In addition, the claims files include extensive 
correspondence between the veteran and various government and 
non-government agencies concerning the amount of ionizing 
radiation to which he was exposed in Operation CASTLE.  

The disabilities at issue are actinic keratosis, verruca 
vulgaris, arthritis of multiple joints including the cervical 
spine, disability of right brain and right eye, nervous 
system disability, esophagitis reflux, abdominal spasm, 
disability manifested by abnormally high lipase reading, 
calcification of the spleen with chronic inflammation, 
pancreatitis, cholecystitis and cholelithiasis with 
cholecystectomy, liver disability, urinary tract infection, 
cystitis of bladder, left renal cyst, diverticulosis and 
genetic defects, all of which the veteran contends are due to 
exposure to ionizing radiation in service.  

The Board notes that with the exception of urinary tract 
infections, the service medical records do not show 
complaint, finding or diagnosis of any of the disabilities 
claimed to be due to radiation exposure.  Urinary tract 
infections were noted on several occasions in service, but at 
a urology consultation in: January 1971, shortly before 
service retirement, the physician noted the veteran's history 
of urinary tract infections responding to Gantrisin.  The 
impression after examination was chronic prostatitis for 
which service connection was later granted.  Post-service 
evidence shows urinary tract infection noted on hospital 
admission in 1976.  There is, however, no medical evidence 
relating the 1976 infection to urinary tract infections in 
service.  Further, the veteran has not submitted medical 
evidence showing diagnosis of urinary tract infection during 
the appeal period, and in the absence of medical evidence of 
current disability, the claim must be denied as not well 
grounded.  

The Board also notes that the only medical evidence showing a 
diagnosis of cystitis of the bladder is dated in 1976.  As 
there is no medical evidence showing the presence of that 
disability at a later date, it cannot be considered a current 
disability, and the claim must be denied as not well 
grounded.  

Further review of the medical evidence shows that in a July 
1991 ultrasound study of the upper abdomen the liver was 
unremarkable, and a CT study of the abdomen in August 1991 
showed no abnormalities of the liver.  Further, liver 
function tests in November 1994 were normal.  The veteran has 
not presented or identified any evidence of liver disability.  
In the absence of evidence of current disability, the claim 
is not well grounded and must be denied.  

Among the veteran's radiation claims is the claim that he has 
disability of right brain and right eye due to exposure to 
ionizing radiation.  Review of the medical evidence shows 
that from 1987 onward the veteran has been seen on multiple 
occasions with complaints of right-sided head pain and pain 
behind the right eye.  CT and MRI studies of the veteran's 
brain have been normal, and the record includes no diagnosis 
of a specific brain disorder.  The only diagnosis of 
disability involving the eye has been glaucoma, and service 
connection for glaucoma has been considered as a separate 
disability elsewhere in the decision.  In any event, the 
veteran has presented no medical opinion linking glaucoma or 
any other eye or brain disability to service.  Although 
medical records include notations that the veteran has given 
a history of exposure to radiation in service, there is no 
medical opinion linking his claimed disabilities to his 
radiation exposure.  

The veteran is shown to have been exposed to ionizing 
radiation during Operation CASTLE, but the claimed right 
brain and right eye disability are not among the diseases for 
which service connection may be granted on a presumptive 
basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d).  
Further, they are not among the recognized radiogenic 
diseases, which if present, warrant claims development under 
38 C.F.R. § 3.311.  Although expressly provided the 
opportunity to do so, the veteran has not submitted or 
identified any scientific or medical evidence that his 
claimed right brain or right eye disability is a radiogenic 
disease, i.e., a disease that may be induced by ionizing 
radiation.  The veteran's claim for service connection is 
therefore not plausible or capable of substantiation and must 
be denied as not well grounded.  

The medical evidence shows that at on least one occasion 
during the appeal period the veteran has been diagnosed as 
having actinic keratosis, verruca vulgaris, arthritis of 
multiple joints including the cervical spine, esophagitis 
reflux, calcification of the spleen with chronic 
inflammation, left renal cyst, pancreatitis and 
diverticulosis.  Additionally, the medical evidence includes 
reference to treatment for cholecystitis and cholelithiasis 
and cholecystectomy in 1976 and the medical evidence in the 
appeal period has shown surgical residuals of the 
cholecystectomy.  The evidence presented by the veteran does 
not include a diagnosis of nervous system disability in those 
terms, but does show a diagnosis of depression.  In addition, 
the record includes reports of laboratory tests showing 
elevated serum lipase, clinical records showing complaints of 
chronic abdominal pain described by the veteran as abdominal 
spasm and impressions of chronic abdominal pain.  Medical 
records show that at various times the elevated lipase was 
associated with the abdominal pain and pancreatitis.  

None of the disabilities discussed in the preceding paragraph 
was shown in the veteran's service medical records, and the 
veteran contends they are due to his exposure to ionizing 
radiation in service.  However, none is among the diseases 
for which service connection may be granted on a presumptive 
basis under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), 
nor is any on the 38 C.F.R. § 3.311 list of recognized 
radiogenic diseases.  The medical evidence showing diagnosis 
and treatment of the claimed disabilities includes notations 
of history of radiation exposure provided by the veteran, but 
does not include any medical opinion linking any claimed 
disability to that exposure.  Further, although provided the 
opportunity to do so, the veteran has not provided or cited 
any scientific or medical evidence that any claimed condition 
is a radiogenic disease.  There remains only the theory 
advanced by the veteran, but he, as a lay person, is not 
competent to provide medical opinions as to etiology or 
diagnosis.  See Espiritu at 494-95.  Under the circumstances, 
service connection for each of these disabilities claimed as 
due to exposure to ionizing radiation must be denied as not 
well grounded.  

With respect to the issue of entitlement to service 
connection for genetic defects due to ionizing radiation, 
currently on appeal, the veteran contends that due to his 
exposure to ionizing radiation in service he has genetic 
defects and that those defects have been passed on to his 
daughter.  The Board points out that it addressed the 
separate issue of entitlement to service connection for the 
veteran's daughter's birth defects and multiple sclerosis in 
its February 1996 decision.  The Board determined that the 
claim was without legal merit and did not consider whether 
the veteran had presented evidence that established the 
presence of the claimed disability.  

To the extent that the veteran's current claim is one of 
entitlement to service connection for genetic defects in the 
sense of mutations in his reproductive cells, he has 
presented no direct medical evidence of the existence of such 
mutations.  Instead, he has in effect argued that alleged 
birth defects of his daughter serve as proof of his claimed 
genetic defects.  He has presented medical evidence that his 
daughter, who was born after his exposure to ionizing 
radiation, was diagnosed as having an ovarian cyst and that 
she has been diagnosed as having multiple sclerosis.  

In response to the RO's letter of April 1996 requesting that 
he provide or identify medical or scientific evidence that 
supports his contention that his claimed genetic defects were 
caused by exposure to ionizing radiation during service, the 
veteran submitted a photocopy of a letter dated in June 1993 
from Evan B. Douple, Ph.D., Senior Staff Officer of the Board 
on Radiation Effects Research, Commission on Life Sciences, 
National Research Counsel.  Dr. Douple stated that the 
National Academy of Sciences had been engaged for about 45 
years in a study of the health effects of the atomic bombings 
on the survivors in Hiroshima and Nagasaki.  He stated that 
one of the major questions had been whether exposure to 
radiation would produce genetic effects.  He said that in the 
studies scientists had looked at different effects of 
radiation in the children of the survivors of the atomic 
bombings.  He said there was no statistically significant 
evidence that mutations were produced in the parents who were 
irradiated and there was no statistically significant 
increase in untoward pregnancy outcomes (including children 
with a major congenital defect).  The veteran also submitted 
abstracts of books he identified as supporting his claim, 
i.e., The Children of the Atomic Bomb Survivors and Health 
Effects of Exposure to Low Levels of Ionizing Radiation:  
BIER V.  

The Board has reviewed the letter from Dr. Douple and the 
cited books.  Although the books include chapters on genetic 
effects of radiation, in neither does the Board find data or 
other information that supports the veteran's thesis that his 
daughter's ovarian cyst and multiple sclerosis demonstrate or 
suggest the presence of mutations of his reproductive cells 
due to his exposure to ionizing radiation in service.  Dr. 
Douple's statements in his letter also do not support the 
veteran's claim as they suggest that available data show no 
statistically significant difference in the incidence of 
mutations of parents' reproductive cells in people exposed to 
ionizing radiation compared to those not exposed.  

The Board finds that the veteran has not presented any 
competent scientific or medical evidence that either ovarian 
cyst or multiple sclerosis is a birth defect attributable to 
mutations of the father's reproductive cells.  The Board is 
left with the veteran's assertions on these matters.  
However, the veteran, as a lay person, is not competent to 
offer evidence that requires medical or scientific knowledge, 
such as that required to identify genetic defects in 
reproductive cells.  See Espiritu at 494-95.  In the absence 
of competent evidence of the claimed disability, the claim is 
not well grounded and must be denied.  

Bronchitis

The Board finds that the veteran's claim for service 
connection for bronchitis is well grounded within the meaning 
of 38 U.S.C.A. § 5107(a) in that it is at least plausible.  
In addition, the Board is satisfied that relevant facts 
sufficient to reach an equitable decision have been 
adequately developed and that no further assistance to the 
veteran is required to comply with 38 U.S.C.A. § 5107(a).  

The service medical records show that in service from late 
1968 to early 1971 the veteran's complaints included head and 
chest colds, coughs and fatigue.  In January and March 1970, 
the veteran was diagnosed as having bronchitis, and in April 
1970 he was described as having a persistent cough and 
fatigue.  In late 1970 and early 1971, complaints included 
chest cold.  

In August 1979, Dr. Coley stated that chronic bronchitis 
could be present in the face of the veteran's smoking 
history.  The impression included dyspnea, possibly related 
to chronic bronchitis.  In September 1979, Dr. Coley stated 
that the veteran had mild chronic bronchitis clinically.  At 
a June 1990 VA examination, the veteran gave a history of 
smoking one package of cigarettes daily from 1949 until 1971 
when he quit.  After examination, the clinical diagnosis 
included chronic bronchitis, prior tobacco use.  Clinical 
records from Dr. Millstone show that when seen in July 1993 
with complaints of dyspnea on exertion and reports of 
production of less than 1/2 ounce of white sputum per day, the 
veteran said that since 1971 he had had bronchitis, which had 
required antibiotics every year.  After examination, the 
assessment was mild pulmonary fibrosis with restrictive lung 
disease probably secondary to pneumoconiosis and asbestosis.  

In February 1995, the veteran gave a history of 3 to 4 days 
of fever, sinus pain, congestion, non-productive cough and 
shortness of breath.  The examiner noted a dry cough, mild 
tenderness of the maxillary sinuses, serous otitis both ears, 
and nasal congestion.  X-rays reportedly showed changes 
secondary to chronic obstructive pulmonary disease and 
bilateral lower lobe infiltrates.  The assessment was 
bilateral pneumonia.  At a primary care clinic the following 
day the physician's assessment was sinobronchitis.  

When seen by Pulmonary and Critical Case Associates in March 
1995, the veteran stated he still felt quite out of breath 
and continued to have some non-productive coughing and 
ongoing nasal congestion.  The physician's impression after 
examination included significant exertional dyspnea, which he 
said might be a consequence of resolving pneumonitis, but he 
could not exclude limitation from the veteran's underlying 
asbestosis or possible chronic obstructive pulmonary disease.  

In view of the conflicting diagnoses and the association of 
bronchitis with the veteran's smoking history, in its 
February 1996 remand the Board requested that the veteran be 
provided a VA examination by a pulmonary specialist to 
confirm or rule out the presence of various claimed 
respiratory disabilities including bronchitis and to provide 
an opinion as to the relationship of any current bronchitis 
to the veteran's cigarette smoking in service.  

The VA examination in August 1997 was conducted by the Chief, 
Pulmonary Section/Medical Service at the Gainesville VA 
Medical Center who is also Professor of Medicine and 
Anesthesiology, Pulmonary Division, University of Florida.  
The physician noted the veteran had a history of bronchitis 
and 20-pack year history of tobacco use ending in 1971.  
After clinical examination, review of a CT scan and pulmonary 
function tests, current and past, his assessment was 
asbestosis as signified per CT scan, pulmonary function test 
findings and notable past exposure.  In a December 1997 
addendum, he stated that he would venture the probability of 
90 percent that the pleural plaques and restrictive 
ventilatory defect were due to asbestos exposure alone.  He 
stated that it did not appear that the functional abnormality 
was related to cigarette smoking.  

At a VA respiratory examination in March 1998, the physician 
noted the veteran's history of exposure to asbestos and 
silica dust in service and also noted the veteran's smoking 
history.  After examination and consideration of CT and 
pulmonary function test results, the assessment was 
asbestosis.  The physician also noted pleural plaques and 
silicosis.  He stated that although more than 20 years of 
cigarette smoking contributed to some of the veteran's 
shortness of breath, it was most likely that the chronic 
shortness of breath, of which the veteran now complained, was 
secondary to the silica dust and asbestos to which he was 
exposed in service.  

Review of the evidence outlined above shows that although the 
veteran was diagnosed as having bronchitis in service, it was 
not then shown to be a chronic disability and was not shown 
to be present at separation from service.  Post-service, 
clinical records do show that during the appeal period the 
veteran was diagnosed as having bronchitis, and physicians 
related it to the veteran's prior tobacco use, most of which 
occurred in service.  In the Board's judgment, this is 
outweighed by the results of VA respiratory examinations in 
August 1997 and March 1998, where the diagnoses did not 
include bronchitis.  The physician who conducted the August 
1997 examination is a pulmonary specialist and both he and 
the physician who conducted the March 1998 examination 
reviewed the medical record and expressed the opinion that 
the veteran's current respiratory symptoms are more likely 
due to his asbestosis and silicosis rather than his cigarette 
smoking.  The Board thus finds that the preponderance of 
evidence is against the claim. 

Otitis media

The veteran's original service connection claim was received 
at the RO in October 1978.  In November 1978, in response to 
a request from the RO, the National Personnel Records Center 
furnished the RO with all available service medical records 
for the veteran.  In a rating decision dated in February 
1979, the RO granted service connection for hearing loss and 
assigned a noncompensable rating.  In the same decision, the 
RO denied service connection otitis media.  The veteran 
appealed the denial of service connection for otitis media.  
In his substantive appeal he stated that swimming and 
showering in tropical waters caused his otitis media.  He 
stated that he was treated and it was in his service record.  
He stated that he was sprayed daily with a powder of some 
sort, probably in 1954 aboard the USS NICHOLAS during 
Operation CASTLE at the Bikini Islands.  In a decision dated 
in May 1980, the Board affirmed the denial of the claim.  

Evidence of record in May 1980 included service medical 
records, which included no complaint, finding or diagnosis of 
otitis media.  At his July 1955 discharge examination for his 
initial period of service, the veteran's ears, including 
internal and external canals, and drums were evaluated as 
normal.  At his August 1955 reenlistment examination, the 
veteran answered no to the question as to whether he then had 
or had ever had running ears or ear, nose or throat trouble.  
At that time, clinical evaluation of the ears, including 
internal and external canals, and drums was normal.  At 
discharge and reenlistment examinations in August and 
November 1961 and in July 1967, the ears, including internal 
and external canals, and drums were evaluated as normal.  
Also, on examination in December 1970, prior to separation 
from his final period of active duty, clinical evaluation of 
the ears, including internal and external canals, and drums 
was normal.  

Also of record was the report of a December 1978 VA 
examination at which the veteran complained of some discharge 
from the right ear and gave a history of past fungus 
infections in the ear canals.  Examination showed ear wax 
accumulation on both sides and a mild discharge on the right 
side.  The diagnosis was "chronic otitis media at the 
present time, of the right ear."  

Evidence added to the record subsequent to the May 1980 Board 
decision includes voluminous medical records concerning 
treatment or evaluation of disabilities other than otitis 
media.  It also includes ships' histories, correspondence and 
data concerning radiation dose estimates, and excerpts from 
medical treatises concerning claimed disabilities other than 
otitis media.  In March 1989, the veteran submitted 
photocopies of hospital records associated with his January 
1959 pilonidal cystectomy.  Those records include the 
operation report, anesthesia record, temperature, pulse and 
respiration report, nursing notes and doctors progress notes.  
In September 1990, the veteran submitted photocopies of a 
report of history and physical examination dated in January 
1959.  The physical examination report shows that on 
examination the ears and tympanic membranes were clear.  The 
service medical records submitted by the veteran in March 
1989 and September 1990 were not in the file in May 1980.  On 
other occasions since May 1980, the veteran has submitted 
additional photocopies of the records submitted in March 1989 
and September 1990 and has also submitted copies of other 
portions of his service medical records, none of which 
mentions fungus infection of the ears or otitis media and all 
of which were of record in May 1980.  

Other evidence added to the record includes the transcript of 
a hearing conducted before a hearing officer at the RO in 
March 1991.  The veteran's hearing testimony did not address 
otitis media.  

In a statement received at the RO in August 1991, the veteran 
reported that during Operation CASTLE at Eniwetok in the 
Bikini Islands, he and others were sent on swimming parties.  
He said that he had a fungus infection in both ears.  He said 
the navy called it otitis medica and that he had submitted 
that medical report to the RO.  He stated that he was 
requesting that his hearing loss and otitis media be service 
connected at a rating of 10 percent.  

Evidence added to the record since the May 1980 Board 
decision also includes the report of a December 1991 VA 
audiological evaluation and a summary report of examination 
for organic hearing loss.  Neither report shows complaint, 
finding or diagnosis of otitis media.  

In a statement received at the Board in July 1992, the 
veteran stated that he had a fungus infection both ears in 
1954 caused by having to swim in contaminated tropical waters 
around the Bikini and Eniwetok atolls and from taking salt 
water showers.  He stated he was claiming that fungus 
infection and otitis media damaged both ears.  He asserted 
that with his April 1979 notice of disagreement to the denial 
of the original claim he had submitted three pages of medical 
proof and that those pages were now missing from his file.  
(In his April 1979 notice of disagreement the veteran said he 
first knew of otitis media during his first tour aboard the 
USS NICHOLAS (DDE 449) when he had fungus infection in both 
ears.  He said that his medical records would show treatment, 
which he believed was at Eniwetok in 1954.  The notice of 
disagreement also addressed other issues, and a sheet 
attached to the end of the document was headed new evidence 
and referred to 1976 treatment records for other 
disabilities.  In no part of the notice of disagreement did 
the veteran refer to submission of treatment records for 
fungus infection or otitis media either during or after 
service.)  

In November 1992 the RO received a DD Form 877 showing that 
in October 1992 NPRC reported to the Jacksonville naval 
hospital that military medical records for the veteran could 
be obtained from the St. Petersburg RO.  At a VA examination 
in September 1993, the veteran's ear canals were clear and 
tympanic membranes were normal.  The examiner stated there 
was no ear infection in the Eustachian, middle or inner ear 
and there was no ear disease affecting balance.  

Clinical records from Dr. Ruggiero show that in September 
1993 the veteran was seen with multiple complaints including 
fluid in his ears.  Examination revealed fluid in both ears 
and some dullness and retraction of the tympanic membranes.  
The impression after examination included serous otitis and 
Eustachian tube dysfunction.  The billing statement included 
the diagnosis otitis media, serous.  An emergency room report 
from the naval hospital shows that when the veteran was seen 
in February 1995 with a recent history of fever, sinus pain, 
congestion, non-productive cough and shortness of breath, the 
findings noted by the examiner included serous otitis both 
ears.  The assessment after clinical examination and X-rays 
was bilateral pneumonia.  At a primary care clinic the 
following day the physician's assessment was sinobronchitis.  

On a VA Form 9 dated in January 1995, the veteran asserted 
that in 1980 he submitted military medical records to the RO 
showing that he received treatment for a fungus infection in 
both ears.  He argued that if the RO lost his records he 
should be rated at 10 percent for serous otitis and 
Eustachian tube dysfunction as diagnosed by Dr. Ruggiero.  In 
a statement received at the RO in March 1995, the veteran 
asserted that he did have a fungus infection in both ears in 
1954 and that in 1979 or 1980 he sent in medical records of 
treatment.  In a statement received in March 1995, the 
veteran asserted that if, as stated by the RO, there were no 
service medical records in the file showing he had a fungus 
infection in his ears in 1954, then someone at VA must have 
destroyed the records he sent.  Most recently, in a letter 
dated in January 1998, the veteran stated that he submitted 
the service medical record in 1979.  

In August 1996, stating he was submitting new and material 
evidence to strengthen his appeal, the veteran submitted a 
description of Meniere's disease from an unidentified medical 
treatise.  He also submitted an emergency room report from a 
private hospital dated in August 1995.  The report shows the 
veteran complained of dizziness and vomiting.  He gave a 
history of having been seen 3 days earlier and having been 
diagnosed as having labyrinthitis and right otitis media.  
After examination, the diagnosis was acute severe dizziness, 
disorientation, rule out postural circulation transient 
ischemic attack.  In addition, the veteran submitted a Mayo 
Clinic report dated in October 1995.  The veteran's history 
included episodes of vertigo, nausea and cold sweats and 
hospitalization following an emergency room visit in August 
1995.  After examination, the impression included acute onset 
vertigo.  The physician stated that most likely the veteran 
had a vestibular neuronitis.  She also stated that it was 
possible that he had Meniere's.  

In June 1996, in response to a request from the RO, NPRC 
reported that all available service medical records for the 
veteran were forwarded to the RO in November 1978.  

As noted earlier, the Board denied service connection for 
otitis media in its May 1980 decision.  Generally, a claim 
that has been disallowed by the Board may not thereafter be 
reopened and allowed.  38 U.S.C.A. § 7104(b) (West 1991).  
The exception to this rule is 38 U.S.C.A. § 5108, which 
provides that if new and material evidence is presented or 
secured with respect to a claim which has been disallowed, 
the Secretary shall reopen the claim and review the former 
disposition of the claim.  

New and material evidence means evidence not previously 
submitted to agency decisionmakers which bears directly and 
substantially upon the specific matter under consideration, 
which is neither cumulative nor redundant, and which by 
itself or in connection with the evidence previously 
assembled is so significant that it must be considered in 
order to fairly decide the merits of the claim.  38 C.F.R. 
§ 3.156(a).  New evidence will be presumed credible solely 
for the purpose of determining whether the claim has been 
reopened.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Other than additional copies of service medical records, the 
originals of which were in the file at the time of the May 
1980 decision, all of the evidence added to the record is 
new, but it is not material to reopen the claim for service 
connection for otitis media.  Most of the evidence does not 
concern otitis media and therefore is not relevant to the 
claim.  The service medical records not previously of record 
do not support the claim as they show that in January 1959 
the veteran's ears and tympanic membranes were clear.  The 
medical evidence dated in the 1990s that includes mention of 
otitis media is also not supportive of the veteran's claim as 
it in no way relates any current symptoms or diagnosis of 
otitis media to service.  

The veteran asserts that service medical records he submitted 
to the RO show that he was treated for fungus infections of 
both ears in service in 1954.  He contends that those records 
have been destroyed by the RO and that his claim cannot be 
denied on the basis that the service medical records do not 
show that he had the claimed fungus infection.  Accepting the 
veteran's assertions as true as to the contents of the 
service medical records he reportedly submitted, i.e., that 
they show he received treatment in 1954 for fungus infections 
of both ears, the fact remains that the evidence added to the 
record since the May 1980 decision cannot be regarded as 
competent evidence that tends to establish that the veteran 
has otitis media that was incurred in or aggravated by 
service, as the evidence submitted in no way relates any 
post-service otitis media to service or suggests that any 
post-service otitis media is causally related to any fungus 
infection of the ears in service in 1954.  As such, this 
evidence, when viewed alone or in connection with evidence 
previously of record (even assuming service medical records 
showing treatment for fungus infections of both ears in 1954 
were previously of record) is not so significant that it must 
be considered to decide fairly the merits of the claim.  
Accordingly, the Board concludes that the evidence added to 
the record subsequent to the May 1980 Board decision is not 
new and material, and the claim for service connection for 
otitis media is not reopened.  

Increased rating claims

Initially, the Board notes that the veteran's increased 
rating claims are well grounded within the meaning of 
38 U.S.C.A. § 5107((a).  Further, the Board is satisfied that 
all relevant facts have been properly developed and that no 
further assistance to the veteran is required to comply with 
38 U.S.C.A. § 5107(a).  

In accordance with 38 C.F.R. § 4.1 and § 4.2 (1999) and 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has 
reviewed the veteran's service medical records and all other 
evidence of record pertaining to the history of the 
disabilities at issue.  The Board has found nothing in the 
historical record that would lead to the conclusion that the 
current evidence of record is not adequate for rating 
purposes.  Moreover, the Board is of the opinion that this 
case presents no evidentiary considerations that would 
warrant an exposition of remote clinical histories and 
findings pertaining to the disabilities.  

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule) found in 38 C.F.R. Part 4.  The Board attempts to 
determine the extent to which the veteran's service-connected 
disability adversely affects his ability to function under 
the ordinary conditions of daily life, and the assigned 
rating is based, as far as practicable, upon the average 
impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999).  

Where there is a question as to which of two evaluations 
should be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7 (1999).  

Hemorrhoids with anal fissure

In its February 1979 rating decision, the RO granted service 
connection for hemorrhoids and assigned a noncompensable 
rating from the date of claim in October 1978.  The veteran 
did not appeal that decision.  On a VA Form 9 received at the 
RO December 20, 1994, the veteran raised the issue of 
entitlement to service connection for an anal fissure and an 
increased rating for his service-connected hemorrhoids.  In 
its December 1994 rating decision, the RO confirmed and 
continued the noncompensable rating for the veteran's 
hemorrhoids.  This decision was discussed in a December 1994 
supplemental statement of the case.  The veteran perfected 
his appeal on the increased rating claim and again requested 
that the service connection claim be decided.  In its 
February 1996 remand, the Board noted that the increased 
rating claim for hemorrhoids was inextricably intertwined 
with the claim of service connection for anal fissure and 
returned the matter to the RO for VA examination and opinion.  
In its rating decision dated in February 1999, the RO 
determined that the veteran's anal fissure was likely related 
to his hemorrhoids.  The RO added anal fissure to the 
description of the veteran's hemorrhoid disability and 
continued the noncompensable rating.  The RO addressed the 
issue in its February 1999 supplemental statement of the 
case, and the veteran continued his appeal.  The Board will 
therefore consider the issue of entitlement to a compensable 
rating for hemorrhoids and hemorrhoids with anal fissure.  

Under 38 C.F.R. § 4.114, Diagnostic Code 7336 for external or 
internal hemorrhoids, mild or moderate hemorrhoids warrant a 
noncompensable rating.  Hemorrhoids that are large or 
thrombotic, irreducible, with excessive redundant tissue, 
evidencing frequent recurrences warrant a 10 percent rating.  
Hemorrhoids with persistent bleeding and with secondary 
anemia, or with fissures warrant a 20 percent rating.  

The evidence outlined earlier shows that at a September 1993 
VA examination the veteran reported rectal bleeding 
approximately every three months.  The anal fissure was 
present, and there were external hemorrhoidal tags and 
internal hemorrhoids.  The physician noted there was no 
anemia and described the internal hemorrhoids as moderate.  
Based on these findings, the continuation of a noncompensable 
rating for the veteran's hemorrhoids prior to the December 
1994 date of claim for service connection for anal fissure is 
appropriate.  Although the veteran reported rectal bleeding 
about a week at a time every three months, there was no 
anemia, and the physician did not indicate the presence of 
excessive redundant tissue nor did he indicate the 
hemorrhoids to be large, thrombotic or irreducible.  Rather, 
he found external hemorrhoidal tags and moderate internal 
hemorrhoids, which are findings consistent with the 
noncompensable rating.  

As indicated by the evidence outlined earlier, the anal 
fissure was present prior to the December 1994 service 
connection claim, and in March 1996, after having been 
evaluated by Dr. Fatemi in February 1996 with complaints of 
chronic rectal pain with bleeding, the veteran underwent 
anoplasty, ulcerectomy and sphincterotomy.  At later 
examinations in 1997 and 1998, the veteran stated he had 
complete relief from his symptoms since the surgery.  
Examinations have revealed that the anal fissure has healed 
and there is no evidence of hemorrhoids or anal skin tags; 
the veteran has reported he no longer has anal symptoms or 
hemorrhoidal flare-ups.  

Based on the clinical evidence, the veteran's hemorrhoids 
with anal fissure warranted a 20 percent rating from December 
20, 1994, the date of receipt of the claim for service 
connection for anal fissure to April 17, 1996, the date the 
veteran's surgeon, Dr. Fatemi, has stated the veteran was no 
longer disabled by his anal fissure and hemorrhoids.  Since 
then, the anal fissure has been described as healed with only 
an asymptomatic scar remaining, and the hemorrhoids have been 
described as absent or asymptomatic.  The disability 
therefore warrants a noncompensable rating subsequent to 
April 17, 1996.  

The Board notes that 20 percent is the maximum schedular 
rating for hemorrhoids with anal fissure.  Review of the 
evidence shows no basis for referral of the claim to the 
Director of the Compensation and Pension Service for 
consideration of an extra-schedular rating. In this regard, 
the Board notes there is no evidence indicating marked 
interference with employment due to the anal fissure or 
hemorrhoids and other than the brief hospitalization in March 
1996, the veteran has not been hospitalized for treatment of 
the disability.  

Prostatitis

Effective February 17, 1994, VA amended the Rating Schedule 
with respect to the diagnostic criteria for rating 
disabilities of the genitourinary system.  59 Fed. Reg. 2527 
(1994) (codified at 38 C.F.R. §§ 4.115a, 4.115b (1994)).  In 
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the 
Court held that where the law or regulation changes after a 
claim has been filed or reopened but before the 
administrative or judicial appeal process has been concluded, 
the version most favorable to the appellant applies unless 
Congress provided otherwise or permitted the Secretary of 
Veterans Affairs to do otherwise and the Secretary did so.  

Prior to February 17, 1994, 38 C.F.R. § 4.115a, Diagnostic 
Code 7527 specified that prostate gland injuries, infections, 
hypertrophy, or post-operative residuals should be rated as 
for chronic cystitis, depending upon the functional 
disturbance of the bladder.  Mild chronic cystitis warranted 
a noncompensable rating while a 10 percent rating required 
moderate cystitis with pyuria and diurnal and nocturnal 
frequency.  A 20 percent rating required moderately severe 
cystitis with diurnal and nocturnal frequency with pain and 
tenesmus.  Severe chronic cystitis with urination at 
intervals or of 1 hour or less and contracted bladder 
warranted a 40 percent evaluation.  A 60 percent rating was 
warranted where incontinence existed, requiring constant 
wearing of an appliance.  38 C.F.R. § 4.115a, Diagnostic Code 
7512 (1993).  

As revised, the Rating Schedule provides that prostate gland 
injuries, infections, hypertrophy or postoperative residuals 
are to be rated as voiding dysfunction or urinary tract 
infection, whichever is predominant.  38 C.F.R. § 4.115b, 
Diagnostic Code 7527.  The criteria for rating voiding 
dysfunction and urinary tract infection appear in the revised 
38 C.F.R. § 4.115a.  Voiding dysfunction is rated by type of 
condition, in terms of urine leakage, urinary frequency or 
obstructed voiding.  Urine leakage requiring the wearing of 
absorbent materials which must be changed less than 2 times a 
day warrants a 20 percent rating.  Urine leakage requiring 
the wearing of absorbent materials which must be changed 2 to 
4 times per day warrants a 40 percent rating.  38 C.F.R. 
§ 4.115a.  

Urinary frequency with daytime voiding interval between two 
and three hours, or; awakening to void two times per night 
warrants a 10 percent rating.  A 20 percent rating requires 
daytime voiding interval between one and two hours, or; 
awakening to void three to four times per night.  Daytime 
voiding interval of less than one hour, or; awakening to void 
five or more times per night warrants a 40 percent rating.  
38 C.F.R. § 4.115a.  

Obstructed voiding characterized by obstructive 
symptomatology with or without stricture disease requiring 
dilation one to two times per year warrants a noncompensable 
rating.  A 10 percent rating requires marked obstructive 
symptomatology (hesitancy, slow or weak stream, decreased 
force of stream) with any one or combination of the 
following:  1. Post void residuals greater than 150 cc.  2. 
Uroflowmetry:  markedly diminished peak flow rate (less than 
10 cc/sec).  3. Recurrent urinary tract infections secondary 
to obstruction.  4. Stricture disease requiring periodic 
dilation every 2 to 3 months.  A 30 percent rating is 
warranted where there is urinary retention requiring 
intermittent or continuous catheterization.  38 C.F.R. 
§ 4.115a.  

Relative to urinary tract infection, infection requiring 
long-term drug therapy, one to two hospitalizations per year 
and/or requiring intermittent intensive management warrants a 
10 percent rating.  Recurrent symptomatic infection requiring 
drainage/frequent hospitalization (more the two times per 
year) and/or requiring continuous intensive management 
warrants a 30 percent rating.  38 C.F.R. § 4.115a.  

Review of the evidence outlined earlier shows the veteran's 
prostatitis is manifested primarily by intermittent episodes 
of increased frequency of urination and dysuria; the evidence 
does not demonstrate chronic diurnal or nocturnal frequency 
or pyuria, nor does it support a finding of more than 
infrequent episodes of awakening to void two or more times 
per night.  

During the appeal period the veteran has had flare-ups of his 
prostatitis requiring antibiotic treatment at most twice a 
year through 1994 and less often since then.  When 
symptomatic in February 1990 and November 1994, the veteran 
complained of dysuria and hesitation, but there is no 
evidence of the presence of those symptoms on a continuing 
basis.  The veteran did report nocturia times 2 at a January 
1994 VA examination, but the physician's impression after 
examination was recurrent prostatitis by clinical history, 
which suggests he did not associate the nocturia then 
reported by the veteran with the prostatitis.  The Board 
acknowledges that the veteran reported awakening to void as 
many as three times a night during treatment for the 
exacerbation of his prostatitis in November 1994.  However, 
the physician who saw him in late November 1994 said he did 
not know if the veteran's current voiding symptoms were from 
increased fluid intake from the medication or from benign 
prostatic hypertrophy.  In any event, the veteran was 
reported to be much improved in January 1995.  At a VA 
urology examination in June 1997, the veteran reported his 
last abnormality had occurred in November 1994, and when 
laboratory studies were done in June 1997, urinalysis was 
normal and there was no evidence of infection.  At no time 
has the veteran complained of frequency of daytime voiding, 
and the veteran has not reported tenesmus.  Finally, the 
Board notes that at the VA genitourinary examination in 
January 1998, the veteran reported he had no nocturia and 
that he voided two to three times a day without difficulty.  

The clinical findings and veteran's reports do not support a 
compensable rating for prostatitis under either the old or 
new rating criteria.  As to the criteria in effect prior to 
February 17, 1994, the evidence shows neither pyuria nor 
diurnal urinary frequency, which are both required, in 
addition to nocturnal frequency, for a 10 percent rating.  
Relative to the revised rating criteria, the requirements for 
a compensable rating have not been met considering the 
criteria for voiding dysfunction or urinary tract infection.  
There has been no showing of urine leakage, and rating 
criteria for that symptomatology are not for consideration.  
Although the record shows some complaints of hesitancy, there 
is no evidence of post void residuals, diminished peak flow 
rate or stricture disease, nor is there evidence of recurrent 
urinary tract infections secondary to obstruction.  Thus, the 
disability does not warrant a 10 percent rating based on 
voiding dysfunction.  

Although there have been times when the veteran has reported 
urinary frequency of two or three times per night, the 
medical evidence either does not associate this with the 
veteran's prostatitis or, in the case of nocturia times 
three, this was shown only briefly during the episode that 
required medical treatment in November 1994.  The medical 
evidence does not show, nor does the veteran contend, that he 
has experienced a daytime voiding interval between two and 
three hours on a continuing basis or that he has experienced 
awakening to void twice per night on a continuing basis due 
to his prostatitis.  Thus, the veteran's symptoms do not meet 
or approximate the criteria for a compensable rating based on 
urinary frequency.  

Finally, the evidence does not show long-term drug therapy, 
and throughout the appeal period there is documentation of 
only one episode requiring treatment that could be described 
as intensive management.  On that occasion in November 1994, 
the veteran received emergency room treatment, but there was 
no hospital admission.  In the Board's judgment, the evidence 
does not show that the veteran's prostatitis meets or 
approximates the criteria for a compensable rating under the 
rating criteria for urinary tract infections.  

Pleural plaques with interstitial changes, asbestosis and 
silicosis

In its October 1994 rating decision, the RO granted service 
connection for asbestosis and included the disability in the 
previously assigned noncompensable rating for disability 
described as faint bilateral pleural plaques with history of 
asbestos exposure.  In its October 1994 rating decision, the 
RO described the service-connected disability as faint 
bilateral pleural plaques with interstitial changes, 
asbestosis.  The RO continued the noncompensable rating under 
Diagnostic Code 6899-6818, and the veteran disagreed with the 
decision.  The RO confirmed and continued the noncompensable 
rating in its December 1994 rating action and stated that the 
veteran's appeal would be expanded to include entitlement to 
an increased rating for faint bilateral pleural plaques with 
interstitial changes, asbestosis.  The RO addressed the issue 
in its December 1994 supplemental statement of the case, and 
the veteran perfected his appeal.  In view of the then-
pending claims for service connection for bronchitis and 
silicosis, in its February 1996 remand, the Board requested 
additional pulmonary examination and medical opinions.  In 
its February 1999 rating decision, the RO granted service 
connection for silicosis.  The RO added silicosis to the 
description of the veteran's service-connected pulmonary 
disability and continued the noncompensable rating.  The RO 
addressed the issue in its February 1999 supplemental 
statement of the case, and the veteran continued his appeal.  

The medical evidence shows that the veteran's service-
connected pulmonary disability is manifested primarily by 
bilateral pleural plaques and dyspnea on moderate exertion; 
pulmonary function tests have shown forced vital capacity 
(FVC) predominately from 75 to 80 percent predicted.  Most of 
the reported tests are pre-medication tests, but those that 
include post-medication results show essentially the same or 
higher values for FVC.  Physicians who reported pulmonary 
function test results in 1997 noted that there had been 
essentially no change in spirometry since tests in 1992 and 
there was some improvement in lung volumes and diffusion 
capacity.  The only available DCLO values are from tests in 
April 1995 when DLCO was 70 percent predicted, and August 
1997 when DLCO was 90 percent predicted.  

The clinical evidence shows that that over time the veteran 
has presented variable reports of dyspnea, including dyspnea 
after walking less than 1/2 block and statements that he 
experienced dyspnea cutting the yard and required 2 to 3 days 
rest after that level of exertion.  At other times the 
veteran has reported that he had some exertional dyspnea but 
that he was still able to ride his bicycle for miles each 
day.  More recently, the veteran has reported that his 
shortness of breath interfered with his ability to do tasks 
such as showering or walking short distances to shop.  One 
physician, Dr. Wolfe of Pulmonary and Critical Care 
Associates, noted that the veteran's exertional dyspnea 
seemed out of proportion to his pulmonary function tests, but 
said the veteran might have abnormalities not detected by 
pulmonary function tests that were related to his pleural 
disease, asbestosis and possibly silicosis.  Other physicians 
more recently have noted that pulmonary function tests have 
provided evidence for only mild restrictive dysfunction 
caused by silicosis/asbestosis and that this finding was 
compounded by the veteran's heavy body habitus.  Nonetheless, 
at the most recent VA respiratory examination in March 1998, 
the physician concluded that the veteran's chronic shortness 
of breath was due to his asbestosis and silicosis.  

The Board notes that effective October 7, 1996, VA revised 
the criteria for diagnosing and evaluating disabilities of 
the respiratory system.  61 Fed. Reg. 46727 (1996).  In view 
of Karnas v. Derwinski, the Board will analyze he veteran's 
increased rating claim to determine whether one is more 
favorable to the other.  

The Board notes that prior to the revision of the Rating 
Schedule relative to disabilities of the respiratory system, 
the RO rated the veteran's service-connected pulmonary 
disability as noncompensably disabling under Diagnostic Code 
6899-6818, that is, as analogous to residuals of injuries of 
the pleural cavity, including gunshot wounds.  Diagnostic 
Code 6818 provided that moderate residuals of pleural cavity 
injuries (including gunshot wounds) with a bullet or missile 
retained in a lung with pain or discomfort on exertion, or 
with scattered rales or some limitation of excursion of the 
diaphragm or of lower chest expansion warranted a 20 percent 
rating.  A 40 percent rating under that code required 
moderately severe residuals with pain in the chest and 
dyspnea on moderate exertion confirmed by an exercise 
tolerance test, adhesions of the diaphragm with restricted 
excursions, moderate myocardial deficiency, and one or more 
of the following: thickened pleura, restricted expansion of 
the lower chest, compensating contralateral emphysema, 
deformity of the chest, scoliosis and hemoptysis at 
intervals.  38 C.F.R. § 4.97, Diagnostic Code 6818 (1995).  

Prior to revision of the Rating Schedule, silicosis was to be 
rated under Diagnostic Code 6801 and unspecified 
pneumoconiosis was to be rated under Diagnostic Code 6802.  
Under these codes, definitely symptomatic disease with 
pulmonary fibrosis and moderate dyspnea on extended exertion 
warranted a 10 percent rating.  Moderate impairment with 
considerable pulmonary fibrosis and moderate dyspnea on 
slight exertion, confirmed by pulmonary function tests, 
warranted a 30 percent rating.  Severe impairment with 
extensive fibrosis, severe dyspnea on slight exertion with 
corresponding ventilatory deficit confirmed by pulmonary 
function tests with marked impairment of health warranted a 
60 percent rating.  A 100 percent rating required pronounced 
impairment with the extent of lesions comparable to far 
advanced pulmonary tuberculosis, or with pulmonary function 
tests confirming a markedly severe degree of ventilatory 
deficit, and dyspnea at rest and other evidence of severe 
impairment of bodily vigor producing total incapacity.  

Under the revised rating criteria, pneumoconiosis (silicosis, 
anthracosis, etc.) is rated under Diagnostic Code 6832 and 
asbestosis is rated under Diagnostic Code 6833.  These codes 
fall under the general rating formula for interstitial lung 
diseases, which specifies that FVC of 75 to 80 percent 
predicted, or Diffusion Capacity of the Lung for Carbon 
Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 
percent predicted warrants a 10 percent rating.  FVC of 65 to 
74 percent predicted, or DLCO (SB) of 56 to 65 percent 
predicted warrants a 30 percent rating.  A 60 percent rating 
is warranted with FVC of 50 to 64 percent predicted, or DLCO 
(SB) of 40 to 55 percent predicted, or maximum exercise 
capacity of 15 to 20 ml/kg/min oxygen consumption with 
cardiorespiratory limitation.  A 100 percent rating requires 
FVC of less than 50 percent predicted, or DLCO (SB) of less 
than 40 percent predicted, or maximum exercise capacity less 
than 15ml/kg/min oxygen consumption with cardiorespiratory 
limitation, or, cor pulmonale or pulmonary hypertension, or, 
requires outpatient oxygen therapy.  

As outlined above, the revised criteria rely on specific 
measurements of FVC and DLCO (SB) from pulmonary function 
tests.  The Board finds that the evidence supports a 10 
percent rating for the veteran's service-connected pulmonary 
disability, but not a higher rating.  A 30 percent rating 
requires FVC values of 64 to 75 percent predicted or DLCO 
(SB) of 56 to 65 percent predicted.  On only one occasion 
during the appeal period was there an FVC value that was less 
than 75 percent predicted.  That occurred in September 1993, 
but FVC values for 2 other tests on the same date were 79.1 
percent predicted and 78.1 percent predicted.  Otherwise, FVC 
values throughout the period were predominantly in the range 
of 75 to 80 percent predicted, which would warrant a 10 
percent rating.  Other tests, including post-medication 
tests, gave FVC values greater than 80 percent predicted, and 
one of the only two DCLO values was 90 percent predicted.  
Thus, the evidence does not show that the veteran's pulmonary 
function test results more nearly approximate the criteria 
for a 30 percent rating under the revised rating criteria.  

Under the prior rating criteria, the RO rated the veteran's 
service-connected pulmonary disability as analogous to 
residuals of pleural cavity injuries.  The disability clearly 
does not warrant an evaluation in excess of 10 percent under 
those criteria.  In view of the veteran's symptoms, and with 
consideration of the guidelines of the VA Manual, M21-1, Part 
VI, which, prior to the establishment of a code for 
asbestosis, recommended rating that disability under the 
criteria for silicosis and pneumoconiosis, it is the Board's 
judgment that under the prior rating criteria, it is most 
appropriate to rate the veteran's service-connected pulmonary 
disability under the diagnostic code for silicosis, 
Diagnostic Code 6801.  

Review of the clinical evidence shows that the veteran has 
pleural scarring and experiences exertional dyspnea, which 
physicians have associated with his service-connected 
pulmonary disability.  The veteran's dyspnea can for the most 
part be described as occurring on moderate exertion.  
Although the veteran's recent complaints of chronic shortness 
of breath interfering with daily activities such as showering 
and shopping suggest there may, at times, be moderate dyspnea 
on slight exertion, there is no medical evidence 
corroborating dyspnea on slight exertion.  In fact, recent 
pulmonary function tests results confirmed the presence of 
only mild restrictive lung disease.  Therefore, the Board 
finds that the disability picture does not more nearly 
approximate the criteria for a 30 percent evaluation than 
those for a 10 percent evaluation under the former rating 
criteria. 


ORDER

Service connection for sinusitis is denied.  

Service connection for glaucoma is denied.  

Service connection for pyogenic granuloma is denied.  

Service connection for disability due to parasite bites is 
denied.  

Service connection for actinic keratosis due to exposure to 
ionizing radiation is denied.  

Service connection for verruca vulgaris due to exposure to 
ionizing radiation is denied.  

Service connection for arthritis of multiple joints including 
the cervical spine due to exposure to ionizing radiation is 
denied.  

Service connection for disability of right brain and right 
eye due to exposure to ionizing radiation is denied.  

Service connection for nervous system disability due to 
exposure to ionizing radiation is denied.  

Service connection for esophagitis reflux due to exposure to 
ionizing radiation is denied.  

Service connection for abdominal spasm due to exposure to 
ionizing radiation is denied.  

Service connection for disability manifested by abnormally 
high lipase reading due to exposure to ionizing radiation is 
denied.  

Service connection for calcification of the spleen with 
chronic inflammation due to exposure to ionizing radiation is 
denied.  

Service connection for pancreatitis due to exposure to 
ionizing radiation is denied.  

Service connection for cholecystitis and cholelithiasis with 
cholecystectomy due to exposure to ionizing radiation is 
denied.  

Service connection for liver disability due to exposure to 
ionizing radiation is denied.  

Service connection for urinary tract infection due to 
exposure to ionizing radiation is denied.  

Service connection for cystitis of the bladder due to 
exposure to ionizing radiation is denied.  

Service connection for left renal cyst due to exposure to 
ionizing radiation is denied.  

Service connection for diverticulosis due to exposure to 
ionizing radiation is denied.  

Service connection for genetic defects due to exposure to 
ionizing radiation is denied.  

Service connection for bronchitis is denied.  

New and material not having been submitted, the claim for 
service connection for otitis media is not reopened.  

A compensable rating for hemorrhoids prior to December 20, 
1994, is denied.  

A 20 percent rating for hemorrhoids with anal fissure is 
granted from December 20, 1994, to April 17, 1996, subject to 
the applicable criteria governing the payment of monetary 
benefits.  

A compensable rating for hemorrhoids with anal fissure 
subsequent to April 17, 1996, is denied.  

A compensable rating for prostatitis is denied.  

A 10 percent rating for bilateral pleural plaques with 
interstitial changes, asbestosis and silicosis is granted 
subject to the applicable criteria governing the payment of 
monetary benefits.  




REMAND

Among the issues remaining in appellate status is the claim 
of entitlement to service connection for back disability.  
The veteran contends there are additional service medical 
records pertinent to his claim that have not been obtained by 
VA.  He has referred to the report of X-rays of his lumbar 
spine taken in December 1958 or January 1959 and a pathology 
report associated with his pilonidal cystectomy in January 
1959.  In the February 1996 remand, the Board requested that 
the RO attempt to obtain the additional service medical 
records, including, but not limited to, additional hospital 
records, nursing notes, doctor's progress notes and any X-ray 
report(s) for the veteran prepared in December 1958 or 
January 1959, including during his hospitalization at the 
U.S. Naval Hospital, Jacksonville, Florida, from January 22, 
1959, to March 11, 1959.  

Subsequent to the February 1996 remand, the RO requested that 
NPRC "please conduct and exhaustive search for any service 
medical records."  In its reply, received at the RO in June 
1996, NPRC stated that all available medical records were 
forwarded to the RO in November 1978.  In addition, NPRC 
advised the RO that to request a search for clinical records 
it should describe the alleged disease or injury and identify 
dates, place and type of treatment, by completing items 16 - 
19 on the request form.  This matter will be returned to the 
RO for additional action as there is no indication that the 
RO provided the detailed information required by NPRC for a 
more comprehensive search for records, and in the Board's 
opinion, the RO has not fulfilled the duty to assist the 
veteran nor has it complied with the Board's remand.  See 
Stegall v. West, 11 Vet. App. 268 (1998).  Upon additional 
review of the record, the Board notes that the veteran has 
stated the X-rays of his back that were taken in December 
1958 or December 1959 were taken at Green Cove Springs, 
Florida.  Entries in the veteran's chronological records of 
medical care show entries variously identified as U.S. Naval 
Station Green Cove Springs, Florida, and Florida Group 
LANTRESFLT, Green Cove Springs, Florida.  Therefore, in 
addition to the U.S. Naval Hospital, Jacksonville, Florida, 
the RO should inform the NPRC of these 
locations/organizations as possible places where the X-rays 
were taken.  The RO should also arrange for an additional 
review of the entire record and a medical opinion by an 
orthopedist.  

The issue of entitlement to a total rating based on 
unemployability due to service connected disabilities also 
remains on appeal, but adjudication of that issue by the 
Board will be deferred until the service connection for back 
disability is resolved.  Additionally, as was noted in the 
February 1996 remand, the MAS denied the claims of 
entitlement to payment or reimbursement of unauthorized 
medical treatment on the basis that the veteran was not 
service connected for the treated condition.  If, after the 
requested development and readjudication of the claim of 
service connection for back disability, the RO grants service 
connection for back disability, the reimbursement claims 
should be returned to the MAS for readjudication.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993).   

Accordingly, the case is REMANDED to the RO for the following 
actions:  

1. The RO should attempt to obtain and 
associate with the claims files any 
additional service medical records or 
"clinical records" including, but not 
limited to, the report(s) of X-ray 
studies of the low back/lumbar spine 
prepared for the veteran in December 
1958 or January 1959.  X-rays may have 
been taken at the U.S. Naval Station 
Green Cove Springs, Florida, Florida 
Group LANTRESFLT, Green Cove Springs, 
Florida, and the U.S. Naval Hospital, 
Jacksonville, Florida.  Another 
specific record to be searched for is 
a pathology report associated with the 
veteran's pilonidal cystectomy in 
January 1959 at the U.S. Naval 
Hospital, Jacksonville, Florida.  In 
this regard, the veteran was 
hospitalized from January 22, 1959, to 
March 11, 1959, at the U.S. Naval 
Hospital, Jacksonville, Florida.  All 
leads as to the location of these 
records should be followed to their 
logical conclusion, and the RO should 
document fully all efforts to obtain 
them.  
2. The RO should contact the veteran and 
request that he identify the names, 
addresses and approximate dates of 
treatment for any health care 
providers, including VA, who may 
possess additional records pertinent 
to his claim for service connection 
for back disability.  With any 
necessary authorization from the 
veteran, the RO should attempt to 
obtain copies of medial records 
identified by the veteran which have 
not already been obtained.  
3. Thereafter, whether or not any of the 
requested records are obtained and 
associated with the claims files, the 
RO should arrange for a VA orthopedist 
not previously associated with the 
case to review all of the veteran's 
service medical records (including 
hospital records and any X-ray 
reports), all post service treatment 
records and X-ray reports concerning 
the veteran's back, including, but not 
limited to:  an August 1974 X-ray 
report from the U.S. Naval Hospital, 
Jacksonville, Florida; emergency room 
records and an X-ray report dated in 
April 1978 from the Greater Orange 
Park Community Hospital; later X-ray 
reports and clinical records from 
various medical facilities; office 
notes, operation report and hospital 
records from Allen T. Brillhart, M.D., 
dated in 1990 and 1991; letters from 
Dr. Brillhart dated in May 1991 and 
June 1992; and the excerpts from 
Fundamentals of Orthopaedics submitted 
by the veteran in March 1995.  The 
physician should be requested to 
provide an opinion as to the etiology 
of the veteran's back disability.  The 
physician should indicate whether any 
current back disorder clearly and 
unmistakably existed prior to service, 
and if so, whether it is at least as 
likely as not that the disorder 
increased in severity during service.  
With respect to any increase in 
severity occurring during service, the 
physician should indicate whether the 
increase was clearly and unmistakably 
due to the natural progress of the 
condition.  With respect to any 
current back disorder which did not 
exist prior to service, the physician 
should provide an opinion as to 
whether it is at least as likely as 
not that the disorder is etiologically 
related to service, to include the 
January 1959 pilonidal sinus surgery 
and/or the conditions of the 48-day 
period of hospitalization associated 
with the surgery.  The supporting 
rationale for each opinion expressed 
should also be provided.  The claims 
files must be made available for 
review, and the physician should be 
requested to affirm in writing that he 
has reviewed the record.  
4. Thereafter, the RO should review the 
claims files and ensure that all 
requested development actions, 
including obtaining the requested 
records and medical opinions, have 
been conducted and completed in full.  
5. Then, the RO should undertake any 
other indicated development and 
readjudicate the claim of entitlement 
to service connection for back 
disability.  Then, unless it has 
become moot, the RO should 
readjudicate the claim of entitlement 
to a total rating based on 
unemployability due to service-
connected disabilities.  
6. Finally, if service connection is 
granted for back disability, the RO 
should return the reimbursement claims 
to the MAS for readjudication.  The 
MAS should then readjudicate the 
claims with consideration of all 
criteria for payment or reimbursement 
set forth in 38 C.F.R. § 17.120 
(formerly § 17.80), and if the claims 
are not granted, issue a supplemental 
statement of the case setting forth 
all reasons for the determinations.  
The veteran and his representative 
should be provided an opportunity to 
respond.  
7. If the benefits sought on appeal are 
not granted to the veteran's 
satisfaction, the RO should issue a 
supplemental statement of the case for 
all issues in appellate status and 
inform the veteran of any issue with 
respect to which further action is 
required to perfect an appeal.  The 
veteran and his representative should 
be provided an opportunity to respond.  

Thereafter, the case should be returned to the Board for 
further appellate consideration, 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 otherwise notified by the RO.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This case 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 
Appeals for Veterans Claims 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. 1999) (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.



		
	SHANE A. DURKIN
	Member, Board of Veterans' Appeals