Citation Nr: 0902956	
Decision Date: 01/28/09    Archive Date: 02/09/09

DOCKET NO.  07-23 476	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 70 
percent for post-traumatic stress disorder (PTSD).  

2.  Entitlement to an effective date earlier than June 30, 
2003, for the grant of service connection for PTSD.  

3.  Entitlement to an effective date earlier than January 17, 
2001, for the grant of service connection for residuals of 
frostbite, peripheral neuropathy and degenerative joint 
disease of the right foot.

4.   Entitlement to an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite, peripheral neuropathy and degenerative joint 
disease of the left foot.

5.  Entitlement to an effective date earlier than January 17, 
2001, for the grant of service connection for residuals of 
frostbite of the right hand.

6.  Entitlement to an effective date earlier than January 17, 
2001, for the grant of service connection for residuals of 
frostbite of the left hand.

7.  Entitlement to an effective date earlier than January 17, 
2001, for the grant of service connection for residuals of 
frostbite of the left ear.

8.  Entitlement to an effective date earlier than February 
27, 2006, for the grant of service connection for 
hypertension.  

9.  Entitlement to an effective date earlier than February 
27, 2006, for the grant of service connection for lumbar 
spine degenerative changes.  

10.  Entitlement to service connection for a respiratory 
disorder, to include residuals of pneumonia, chronic 
obstructive pulmonary disorder (COPD) and emphysema. 

11.  Entitlement to service connection for arthritis of the 
legs, knees, hips, hands, wrists, elbows, neck and shoulders.  

12.  Entitlement to service connection for irritable bowl 
syndrome (IBS).

13.  Entitlement to service connection for duodenal mucosa.

14.  Entitlement to service connection for colon polyps.

15.  Entitlement to service connection for snail fever.

16.  Entitlement to service connection for jungle rot.

17.  Entitlement to service connection for chronic viral 
infection.

18.  Entitlement to service connection for blood transfusion.

19.  Entitlement to service connection for treponemal 
infection.

20.  Entitlement to service connection for peripheral 
neuropathy, left upper extremity.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jason R. Davitian, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2008).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).

The veteran served on active duty from August 1943 to 
November 1945, and from January 1946 to April 1953.  He was a 
prisoner of war (POW) of the Chinese government for several 
days in November 1950 before escaping.  

This case is before the Board of Veterans' Appeals (BVA or 
Board) on appeal from rating decisions of the Department of 
Veterans Affairs (VA) Regional Office in St. Petersburg, 
Florida (RO).  

A May 2006 rating decision denied service connection, or 
declined to reopen claims for service connection, for a 
number of conditions which the veteran withdrew during a 
December 2008 hearing before the undersigned Acting Veterans 
Law Judge:  IBS, duodenal mucosa, colon polyps, snail fever, 
jungle rot, chronic viral infection, blood transfusion, 
treponemal infection, and peripheral neuropathy, left upper 
extremity.

The May 2006 rating decision also held that new and material 
evidence had not been submitted to reopen claims for service 
connection for pulmonary disease; arthritis of the legs, 
knees, hips, back, hands, wrists, elbows, neck and shoulders; 
frostbite of the hands, feet and ears; and PTSD.  

A November 2006 decision by the Army Board for Correction of 
Military Records (BCMR) upgraded the discharge for the 
veteran's period of service from December 1949 to April 1953, 
to a general discharge.  The BCMR decision observes that the 
veteran submitted his claim for an upgrade on February 27, 
2006.  

A May 2007 statement of the case noted this discharge upgrade 
and proceeded to adjudicate the underlying merits of the 
issues of service connection for residuals of pneumonia 
(i.e., a pulmonary condition) and arthritis of the legs, 
knees, hips, hands, wrists, elbows, neck and shoulders.  Due 
to these unique circumstances, the Board has characterized 
these issues as entitlement to service connection on the 
merits and will not address whether new and material evidence 
has been submitted to reopen these claims.  

In a May 2007 decision, a Decision Review Officer (DRO) 
granted service connection for PTSD (evaluated as 50 percent 
disabling), service connection for residuals of frostbite of 
the right foot, residuals of frostbite of the left foot, 
residuals of frostbite of the right hand, residuals of 
frostbite of the left hand, residuals of frostbite of the 
left ear, hypertension and lumbar spine degenerative changes.  
These grants of service connection were effective December 
29, 2006.

In a November 2007 decision, a DRO assigned a 70 percent 
evaluation for PTSD, effective June 30, 2003 (effectively 
granting the veteran an earlier effective date for the grant 
of service connection); granted service connection for 
peripheral neuropathy and degenerative joint disease of the 
right lower extremity and included it with the veteran's 
residuals of frostbite of the right foot, and assigned a 30 
percent evaluation, effective January 17, 2001 (effectively 
granting the veteran an earlier effective date for the grant 
of service connection); granted service connection for 
peripheral neuropathy and degenerative joint disease of the 
left lower extremity and included it with the veteran's 
residuals of frostbite of the left foot, and assigned a 30 
percent evaluation, effective January 17, 2001 (effectively 
granting the veteran an earlier effective date for the grant 
of service connection); and assigned an effective date of 
January 17, 2001, for the grants of service connection for 
residuals of frostbite of the right hand, residuals of 
frostbite of the left hand, residuals of frostbite of the 
left ear, and hypertension.  The DRO decision also assigned a 
20 percent evaluation for the veteran's lumbar spine 
degenerative changes, effective February 27, 2006 
(effectively granting the veteran an earlier effective date 
for the grant of service connection). 

The issues of service connection for a respiratory disorder, 
to include residuals of pneumonia, COPD and emphysema; and 
service connection for arthritis of the legs, knees, hips, 
hands, wrists, elbows, neck and shoulders are addressed in 
the REMAND portion of the decision below and are REMANDED to 
the RO via the Appeals Management Center (AMC), in 
Washington, DC.


FINDINGS OF FACT

1.  The competent medical evidence, overall, reflects that 
the veteran's PTSD does not result in gross impairment in 
thought processes or communication; persistent 
hallucinations; grossly inappropriate behavior; persistent 
danger of hurting self or others; intermittent inability to 
perform activities of daily living; disorientation to time or 
place; or memory loss for names of close relatives, own 
occupation, or own name.  

2.  The veteran submitted his application to reopen his claim 
for service connection for PTSD on June 30, 2003.

3.  The veteran submitted his application to reopen his claim 
for service connection for frostbite on January 17, 2001.

4.  The veteran submitted an application for a discharge 
upgrade to the BCMR on February 27, 2006; the BCMR's November 
2006 favorable decision led to grants of service connection 
for hypertension and lumbar spine degenerative changes.  

5.  During a December 2008 hearing before the undersigned 
Acting Veterans Law Judge, the veteran withdrew the issues of 
service connection for IBS, duodenal mucosa, colon polyps, 
snail fever, jungle rot, chronic viral infection, blood 
transfusion, treponemal infection, and peripheral neuropathy, 
left upper extremity.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 70 
percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2008).

2.  The criteria for an effective date earlier than June 30, 
2003, for the grant of service connection for PTSD have not 
been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 
(2008).

3.  The criteria for an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite, peripheral neuropathy and degenerative joint 
disease of the right foot, have not been met.  38 U.S.C.A. § 
5110 (West 2002); 38 C.F.R. § 3.400 (2008).

4.  The criteria for an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite, peripheral neuropathy and degenerative joint 
disease of the left foot, have not been met.  38 U.S.C.A. § 
5110 (West 2002); 38 C.F.R. § 3.400 (2008).

5.  The criteria for an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite of the right hand have not been met.  38 
U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008).

6.  The criteria for an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite of the left hand have not been met.  38 U.S.C.A. 
§ 5110 (West 2002); 38 C.F.R. § 3.400 (2008).

7.  The criteria for an effective date earlier than January 
17, 2001, for the grant of service connection for residuals 
of frostbite of the left ear have not been met.  38 U.S.C.A. 
§ 5110 (West 2002); 38 C.F.R. § 3.400 (2008).

8.  The criteria for an effective date earlier than February 
27, 2006, for the grant of service connection for 
hypertension have not been met.  38 U.S.C.A. § 5110 (West 
2002); 38 C.F.R. § 3.400 (2008).

9.  The criteria for an effective date earlier than February 
27, 2006, for the grant of service connection for lumbar 
spine degenerative changes have not been met.  38 U.S.C.A. § 
5110 (West 2002); 38 C.F.R. § 3.400 (2008).

10.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for IBS have been met.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 38 C.F.R. §§ 
20.202, 20.204 (2008).

11.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for duodenal mucosa have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 38 
C.F.R. §§ 20.202, 20.204 (2008).

12.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for colon polyps have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 38 
C.F.R. §§ 20.202, 20.204 (2008).

13.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for snail fever have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 38 
C.F.R. §§ 20.202, 20.204 (2008).

14.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for jungle rot have been met.  38 U.S.C.A. 
§ 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 38 C.F.R. §§ 
20.202, 20.204 (2008).

15.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for chronic viral infection have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 
38 C.F.R. §§ 20.202, 20.204 (2008).

16.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for blood transfusion have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 
38 C.F.R. §§ 20.202, 20.204 (2008).

17.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for treponemal infection have been met.  
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2007); 
38 C.F.R. §§ 20.202, 20.204 (2008).

18.  The criteria for withdrawal of a Substantive Appeal by 
the veteran with regard to the issue of entitlement to 
service connection for peripheral neuropathy, left upper 
extremity, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) 
(West 2002 & Supp. 2007); 38 C.F.R. §§ 20.202, 20.204 (2008).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and 
assist claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2008).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

For claims pending before VA on or after May 30, 2008, 38 
C.F.R. § 3.159 was amended to eliminate the requirement that 
VA request that a claimant submit any evidence in his or her 
possession that might substantiate the claim.  See 73 FR 
23353 (Apr. 30, 2008).  

As the veteran is withdrawing his claims for service 
connection for IBS, duodenal mucosa, colon polyps, snail 
fever, jungle rot, chronic viral infection, blood 
transfusion, treponemal infection, and peripheral neuropathy, 
left upper extremity, the VCAA does not apply to these 
claims.  

The veteran's earlier effective date claims arise from his 
disagreement with the effective dates following the grants of 
service connection.  His claim for an increased initial 
evaluation for PTSD arises from his disagreement with the 
initial disability evaluation following the grant of service 
connection.  Courts have held that once service connection is 
granted the claim is substantiated, additional notice is not 
required and any defect in the notice is not prejudicial.  
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap 
v. Nicholson, 21 Vet. App. 112 (2007).

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment reports.  The veteran was provided an opportunity 
to set forth his contentions during the December 2008 hearing 
before the undersigned Acting Veterans Law Judge.  The 
appellant was afforded a VA medical examination in August 
2007.  Significantly, neither the appellant nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  Hence, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Evaluation for PTSD

Disability ratings are determined by applying the criteria 
set forth in VA's Schedule for Rating Disabilities (Rating 
Schedule), which is based on the average impairment of 
earning capacity.  Individual disabilities are assigned 
separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. § 4.1 (2008).  If two evaluations are potentially 
applicable, 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.  Reasonable doubt as to the 
degree of disability will be resolved in the veteran's favor.  
38 C.F.R. § 4.3.

If there is disagreement with the initial rating assigned 
following a grant of service connection, separate ratings can 
be assigned for separate periods of time, based on the facts 
found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See 
AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original 
or an increased rating remains in controversy when less than 
the maximum available benefit is awarded).  

Pertinent regulations do not require that all cases show all 
findings specified by the Rating Schedule, but that findings 
sufficiently characteristic to identify the disease and the 
resulting disability and above all, coordination of rating 
with impairment of function will be expected in all cases.  
38 C.F.R. § 4.21.  Therefore, the Board has considered the 
potential application of various other provisions of the 
regulations governing VA benefits, whether or not they were 
raised by the veteran, as well as the entire history of the 
veteran's disability in reaching its decision.  Schafrath v. 
Derwinski, 1 Vet. App. 589, 595 (1991).

The Rating Schedule provides that a 70 percent evaluation for 
PTSD is warranted for occupational and social impairment, 
with deficiencies in most areas, such as work, school, family 
relations, judgment, thinking, or mood, due to such symptoms 
as: suicidal ideation; obsessional rituals which interfere 
with routine activities: speech intermittently illogical, 
obscure, or irrelevant; near-continuous panic or depression 
affecting the ability to function independently, 
appropriately and effectively; impaired impulse control (such 
as unprovoked irritability with periods of violence); spatial 
disorientation; neglect of personal appearance and hygiene; 
difficulty in adapting to stressful circumstances (including 
work or a worklike setting); and inability to establish and 
maintain effective relationships. Diagnostic Code 9411.

A 100 percent evaluation for PTSD is warranted for total 
occupational and social impairment, due to such symptoms as: 
gross impairment in thought processes or communication; 
persistent delusions or hallucinations; grossly inappropriate 
behavior; persistent danger of hurting self or others; 
intermittent inability to perform activities of daily living 
(including maintenance of minimal personal hygiene); 
disorientation to time or place; and memory loss for names of 
close relatives, own occupation, or own name.  Diagnostic 
Code 9411.

The medical evidence before the Board contains VA outpatient 
treatment records showing treatment for PTSD during the 
appeal period, as well as the report of an October 2007 VA 
examination for PTSD.  The examination report provides that 
the veteran was single and did not pursue a romantic 
relationship.  His relationship with his children was 
unchanged.  He had some friends but was mostly a loner and 
had trouble trusting people.  He enjoyed sports and other 
activities.  He had never attempted suicide and while violent 
in the past, he had learned to control his temper.  

On examination, he was clean and cooperative with 
unremarkable psychomotor activity, thought process and 
content, and speech.  His affect was constricted.  He was 
alert and oriented to person, time and place.  He did have 
persistent delusions that something was going to happen.  He 
understood the outcome of his behavior.  He had sleep 
impairment due to nightmares.  He had no inappropriate 
behavior, obsessive/ritualistic behavior, panic attacks, 
homicidal or suicidal thoughts, episodes of violence or 
problems with activities of daily living.  He was able to 
maintain hygiene and his impulse control was good.  The 
veteran did have persistent reexperiencing of the traumatic 
event, persistent avoidance of stimuli associated with the 
trauma, and persistent symptoms of increased arousal.  Due to 
the stress exposure, he had difficulty having interpersonal 
relationships because he was unable to trust others since 
being a POW and would not let others take care of him.  The 
veteran retired in 1991 due to age.  

The Axis I diagnosis was PTSD, chronic, and major depressive 
disorder, resolved.  The Axis V Global Assessment of 
Functioning (GAF) score was 49 over the prior year.  The 
examiner commented that the veteran's PTSD did not result in 
total occupational and social impairment.  It did result in 
deficiencies in judgment, thought, mood and work, but not 
family relations.  

Based on a thorough review of the record, the Board finds 
that the preponderance of the evidence is against the 
veteran's claim for a 100 percent evaluation for PTSD.  The 
foregoing records simply do not show total occupational and 
social impairment.  There is no evidence of gross impairment 
in thought processes or communication; persistent 
hallucinations; grossly inappropriate behavior; persistent 
danger of hurting self or others; intermittent inability to 
perform activities of daily living; disorientation to time or 
place; and memory loss for names of close relatives, own 
occupation, or own name. 

The Board recognizes that the veteran's GAF score of 49 
represents serious symptoms (e.g., suicidal ideation, severe 
obsessional rituals, frequent shoplifting) OR any serious 
impairment in social, occupational or school functioning 
(e.g., no friends, unable to keep a job) (emphasis in 
original).  AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND 
STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) 
[hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2008).  Even so, 
this score does not reflect the criteria for a 100 percent 
evaluation under the Rating Schedule.

The Board is aware of the veteran's own general assertions as 
to the severity of his PTSD.  However, these contentions do 
not support his claim.  As a general matter, lay statements 
are considered to be competent evidence when describing the 
features or symptoms of an injury or illness.  See Falzone v. 
Brown, 8 Vet. App. 398, 405 (1995).  The veteran himself, as 
a layperson, is not competent to provide an opinion requiring 
medical knowledge or a clinical examination by a medical 
professional, such as an opinion addressing whether a 
service-connected disability satisfies diagnostic criteria.  
See Bostain v. West, 11 Vet. App. 124, 127 (1998) citing 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also 
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson 
is generally not capable of opining on matters requiring 
medical knowledge").  

Despite the veteran's testimony as to the observable symptoms 
of his PTSD, the medical record before the Board shows that 
the manifestations do not satisfy the diagnostic criteria for 
an evaluation in excess of 70 percent.  As a result, his 
assertions do not constitute evidence that this disability 
warrants an increased evaluation.  

Further, the evidence shows that the veteran does not qualify 
for extra-schedular consideration of his service-connected 
PTSD.  38 C.F.R. § 3.321(b)(1) (2008).  The record does not 
establish that the relevant rating criteria are inadequate 
for evaluating his PTSD.  His complaints and symptoms, as 
described above, are not extraordinary for a person with 
PTSD.  They are reflected in the assignment of the 70 percent 
evaluation.  Thus, the Board finds that the schedular 
criteria are not inadequate for rating the veteran's PTSD.  
As a result, no further consideration of an extra-schedular 
rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 
115-116 (2008). 

In sum, the medical evidence demonstrates that the veteran is 
not entitled to an evaluation in excess of 70 percent for 
PTSD.  As the preponderance of the evidence is against the 
claim, the benefit of the doubt doctrine is not for 
application.  See generally Gilbert v. Derwinski, 1 Vet. App. 
49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 
2001).

Earlier Effective Dates

The veteran alleges that the effective date for his grants of 
service connection for PTSD; residuals of frostbite, 
peripheral neuropathy and degenerative joint disease of the 
right foot; residuals of frostbite, peripheral neuropathy and 
degenerative joint disease of the left foot; residuals of 
frostbite of the right hand; residuals of frostbite of the 
left hand; residuals of frostbite of the left ear; 
hypertension; and lumbar spine degenerative changes should be 
in 1985, when he first sought service connection.  The Board 
observes that the veteran actually submitted the claim for 
service connection in August 1984.  The veteran points out 
that a January 1986 rating decision denying his claims noted 
that some of his service was under dishonorable conditions.  

The veteran also alleges that he submitted a claim for 
service connection for frostbite in April 1998.  He states 
that a July 1998 rating decision did not address this claim, 
and thus it was still pending at the time service connection 
was granted in May 2007.  Therefore, the effective date of 
the awards of service connection for various residuals of 
frostbite should be April 1998.

In general, applicable law and regulations concerning 
effective dates state that, except as otherwise provided, the 
effective date of an evaluation and award of pension, 
compensation or dependency and indemnity compensation based 
on an original claim, a claim reopened after final 
disallowance or a claim for increase will be the date of 
receipt of claim or the date entitlement arose, whichever is 
later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(a).

Where entitlement is established because of the correction, 
change or modification of a military record, or of a 
discharge or dismissal, by a Board established under 10 
U.S.C.A. §§ 1552 or 1553, or because of other corrective 
action by competent military naval, or air authority, the 
award will be effective from the latest of these dates: (1) 
Date application for change, correction, or modification was 
filed with the service department, in either an original or a 
disallowed claim;  (2) Date of receipt of claim if claim was 
disallowed; or  (3) One year prior to date of reopening of 
disallowed claim.  38 C.F.R. § 3.400(g).

The effective date for the grant of service connection where 
new and material evidence is received after final 
disallowance will be the date of receipt of new claim or date 
entitlement arose, whichever is later.  38 C.F.R. § 3.400(q).

Pertinent VA regulations provide that a claim for VA 
benefits, whether formal or informal, must be in writing and 
must identify the benefit sought.  See 38 U.S.C.A. § 5101; 38 
C.F.R. §§ 3.1, 3.151, 3.155; Rodriquez v. West, 189 F.3d 1351 
(Fed.Cir. 1999); Lalonde v. West, 12 Vet.App. 377 (1999).  
While the VA should broadly interpret submissions from a 
veteran, it is not required to conjure up issues not 
specifically raised.  Brannon v. West, 12 Vet. App. 32 
(1998).

An informal claim is defined as "[a]ny communication or 
action, indicating an intent to apply for one or more 
benefits under the laws administered by the Department of 
Veterans Affairs, from a claimant...."  38 C.F.R. § 3.155.  
Such an informal claim must identify the benefit sought; and, 
upon receipt of an informal claim, if a formal claim has not 
been filed, an application form will be forwarded to the 
claimant for execution.  If received within one year from the 
date it was sent to the claimant, it will be considered filed 
as of the date of receipt of the informal claim.  Id.

In this case, the veteran did submit a claim in August 1984 
seeking service connection for, among other things, a back 
condition, frostbite of the feet and legs, delayed stress 
syndrome, and back surgery.  A January 1986 rating decision 
denied these claims and the veteran did not appeal them.  
Therefore, the veteran's August 1984 claim is no longer on 
appeal and is not pending, and the effective date of the 
grants of service connection cannot be in August 1984.

The veteran did submit a claim in April 1998 seeking service 
connection for a back condition and frozen feet and fingers.  
A July 1998 rating decision denied entitlement to non-
service-connected pension.  The accompanying cover letter, 
also dated in July 1998, informed the veteran that VA had 
previously denied service connection for back problems and 
frost bite in the hands and feet.  The letter reminded the 
veteran that a February 1986 letter had informed him of this 
denial.  The letter advised the veteran that since he had not 
appealed that decision within one year, he had to submit new 
and material evidence to reopen the claim.  Since the letter 
declined to reopen the veteran's prior final denials of 
service connection, and provided him notice of what was 
required to reopen them, the April 1998 claim is no longer on 
appeal and is not pending.  Thus, the effective date for the 
grants of service connection for residuals of frostbite 
cannot be in April 1998.

The veteran submitted an application to reopen his claim for 
service connection for residuals of frostbite on January 17, 
2001.  He submitted an application to reopen his claim for 
service connection for PTSD on June 30, 2003.  These claims 
ultimately led to the May 2007 DRO decision granting service 
connection, and the November 2007 DRO decision assigning the 
current effective dates.  

Applying the pertinent VA regulation (38 C.F.R. § 3.400(q))to 
the facts, it is clear that effective dates earlier than 
January 17, 2001, and June 30, 2003, are not warranted for 
the grants of service connection for residuals of frostbite 
and PTSD, respectively.  The record contains no document 
dated after the prior final denials in 1984 and 1998, but 
before the January 2001 and June 2003 claims, that 
constitutes a claim for service connection for frostbite and 
PTSD.  There is no evidence or statement dated during this 
period that can be construed as a formal or informal claim 
for service connection.  Thus, the Board finds that an 
effective date prior to January 17, 2001, for the grants of 
service connection for residuals of frostbite, and an 
effective date prior to June 30, 2003, for the grant of 
service connection for PTSD, are not warranted.

Applying the pertinent VA regulation (38 C.F.R. § 3.400(g)) 
to the facts, it is also clear that effective dates earlier 
than February 27, 2006, are not warranted for the grants of 
service connection for hypertension and lumbar spine 
degenerative changes.  The record contains no evidence that 
the veteran submitted his claim for an upgraded discharge to 
the BCMR earlier than February 27, 2006.  Thus, the Board 
finds that an effective date prior to February 27, 2006, for 
the grants of service connection for hypertension and lumbar 
spine degenerative changes is not warranted.

As the preponderance of the evidence is against the veteran's 
claims for earlier effective dates, the benefit of the doubt 
doctrine is not for application and the claims must be 
denied.  See generally Gilbert, supra; Ortiz, supra.

Withdrawn Claims

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
that fails to allege specific error of fact or law in the 
determination being appealed.  38 C.F.R. § 20.202.  A 
Substantive Appeal may be withdrawn on the record at a 
hearing or in writing at any time before the Board 
promulgates a decision.  Withdrawal may be made by the 
appellant or by his authorized representative.  38 C.F.R. § 
20.204.

During the December 2008 hearing, the veteran withdrew his 
appeal to the Board concerning the issues of service 
connection for IBS, duodenal mucosa, colon polyps, snail 
fever, jungle rot, chronic viral infection, blood 
transfusion, treponemal infection, and peripheral neuropathy, 
left upper extremity.

Based on the above, there remain no allegations of errors of 
fact or law for appellate consideration with regard to the 
issues of service connection for IBS, duodenal mucosa, colon 
polyps, snail fever, jungle rot, chronic viral infection, 
blood transfusion, treponemal infection, and peripheral 
neuropathy, left upper extremity.  Accordingly, they are 
therefore dismissed.

	
ORDER

An initial evaluation in excess of 70 percent for PTSD is 
denied.

An effective date earlier than June 30, 2003, for the grant 
of service connection for PTSD is denied.

An effective date earlier than January 17, 2001, for the 
grant of service connection for residuals of frostbite, 
peripheral neuropathy and degenerative joint disease of the 
right foot is denied.

An effective date earlier than January 17, 2001, for the 
grant of service connection for residuals of frostbite, 
peripheral neuropathy and degenerative joint disease of the 
left foot is denied.

An effective date earlier than January 17, 2001, for the 
grant of service connection for residuals of frostbite of the 
right hand is denied.

An effective date earlier than January 17, 2001, for the 
grant of service connection for residuals of frostbite of the 
left hand is denied.

An effective date earlier than January 17, 2001, for the 
grant of service connection for residuals of frostbite of the 
left ear is denied.

An effective date earlier than February 27, 2006, for the 
grant of service connection for hypertension is denied.

An effective date earlier than February 27, 2006, for the 
grant of service connection for lumbar spine degenerative 
changes is denied.

The issue on appeal of entitlement to service connection for 
IBS is dismissed.

The issue on appeal of entitlement to service connection for 
duodenal mucosa is dismissed.

The issue on appeal of entitlement to service connection for 
colon polyps is dismissed.

The issue on appeal of entitlement to service connection for 
snail fever is dismissed.

The issue on appeal of entitlement to service connection for 
jungle rot is dismissed.

The issue on appeal of entitlement to service connection for 
chronic viral infection is dismissed.

The issue on appeal of entitlement to service connection for 
blood transfusion is dismissed.

The issue on appeal of entitlement to service connection for 
treponemal infection is dismissed.

The issue on appeal of entitlement to service connection for 
peripheral neuropathy, left upper extremity, is dismissed.




REMAND

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2008).  Expedited 
handling is requested.)

The issues of service connection for a respiratory disorder, 
to include residuals of pneumonia, COPD and emphysema; and 
service connection for arthritis of the legs, knees, hips, 
hands, wrists, elbows, neck and shoulders, require additional 
development.  

The VCAA requires that VA assist a claimant by providing the 
claimant a medical examination or obtaining a medical opinion 
when such an examination or opinion is necessary to make a 
decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 
38 C.F.R. § 3.159 (2008).  However, in this case VA did not 
obtain the necessary medical opinions.  

VA provided the veteran several examinations in August 2007.  
The report of an orthopedic examination provides that bone 
scan findings were consistent with arthritic/degenerative 
changes in the spine, shoulder joints, wrists, hip joints, 
knees, ankles and feet.  The pertinent bone scan impression 
was scattered arthritic/degenerative changes.  The pertinent 
final diagnosis was age-related degenerative joint disease 
both knees, and post-traumatic degenerative joint disease 
both ankles, not due to POW condition.  However, the examiner 
failed to provide an opinion as to the etiology of the 
veteran's arthritis of the legs, hips, hands, wrists, elbows, 
neck and shoulder, even though scattered arthritis was 
objectively noted by bone scan.  The examiner did not address 
whether the veteran's arthritis of the knees was related to 
service on a basis other than his POW condition.  

Similarly, the report of the August 2007 VA cardiovascular 
examination provides a pertinent diagnosis of pulmonary 
hypertension, secondary to COPD and not related to POW 
status.  However, the same VA examiner failed to provide an 
opinion as to the etiology of the veteran's COPD, even though 
it was diagnosed.  The examiner did not address whether the 
veteran's COPD was related to service on a basis other than 
his POW condition.

The failure of the VA examiner to fully address the etiology 
of the claimed conditions is made more significant by the 
veteran's December 2008 hearing testimony.  He testified that 
[VA] physicians had told him that his arthritis was related 
to his frostbite, and his COPD was related to pneumonia or 
lung problems he had on active duty.  

Accordingly, the case is REMANDED for the following action: 

1.  Forward the veteran's claims folder 
to the examiner who conducted the 
August 2008 VA examinations for an 
addendum.  

Following a review of the relevant 
medical evidence in the claims file, 
the objective medical history and the 
August 2008 VA examination reports, the 
examiner is asked to opine whether it 
is at least as likely as not (50 
percent or more likelihood) that: (1) 
arthritis of the legs, knees, hips, 
hands, wrists, elbows, neck and 
shoulder is related to the veteran's 
service, his POW status, or his 
service-connected frostbite; and (2) a 
respiratory disorder, to include 
residuals of pneumonia, COPD and 
emphysema, is related to the veteran's 
service, or his POW status.

The examiner is requested to provide a 
rationale for any opinion expressed.  
If the examiner finds it impossible to 
provide any part of the requested 
opinion without resort to pure 
speculation, he or she should so 
indicate.

If the examiner who conducted the 
August 2008 VA is unavailable, a 
suitable substitute may conduct the 
requested review, conduct another 
examination if deemed necessary, and 
provide the requested medical opinions.  

2.  Then, readjudicate the veteran's 
claim for service connection for a 
respiratory disorder, to include 
residuals of pneumonia, COPD and 
emphysema; and service connection for 
arthritis of the legs, knees, hips, 
hands, wrists, elbows, neck and 
shoulder.  If any part of the decision 
is adverse to the veteran, he and his 
representative should be provided an 
SSOC.  A reasonable period of time for 
a response should be afforded before 
his case is returned to the Board for 
further appellate consideration, if in 
order.

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

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs