Citation Nr: 0025747	
Decision Date: 09/27/00    Archive Date: 10/04/00

DOCKET NO.  92-08 810	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim for service connection for residuals of left 
shoulder dislocation.

2.  Entitlement to service connection for hearing loss and 
tinnitus.

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


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher P. Kissel, Counsel


INTRODUCTION

The appellant served on active duty from October 1968 to 
December 1969.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from a March 1991 rating decision of the 
Nashville, Tennessee, Department of Veterans Affairs (VA) 
Regional Office (RO).  In a decision dated April 21, 1999, 
the Board declined to reopen previously denied claims of 
entitlement to service connection for residuals of left 
shoulder dislocation, an acquired psychiatric disorder, and 
residuals of a head injury.  In addition, the Board denied 
entitlement to service connection for residuals of rheumatic 
fever, hearing loss and tinnitus, and PTSD.  Further, the 
Board denied entitlement to compensation benefits under the 
provisions of 38 U.S.C.A. § 1151 for a left shoulder 
disability and for recurrent ventral hernias.  The appellant 
appealed the Board's decision to the United States Court of 
Appeals for Veterans Claims (the Court).

In December 1999, counsel for the appellant and VA filed a 
Joint Motion for Remand and requested a stay of proceedings 
pending a ruling on the motion.  It was agreed by the parties 
that the appellant would appeal only the issues of whether 
new and material evidence had been submitted to reopen a 
claim of service connection for residuals of left shoulder 
dislocation, service connection for hearing loss and 
tinnitus, and service connection for PTSD.  Accordingly, the 
parties requested the Court to dismiss the remaining five 
issues cited above in the preceding paragraph.  An Order of 
the Court dated in January 2000 granted the motion and 
vacated that part of the Board's decision of April 1999 that 
denied service connection for the left shoulder disorder (on 
the basis of failure to submit new and material evidence), 
hearing loss and tinnitus, and PTSD.  The appeal as to the 
other five issues was dismissed and the case was remanded for 
further development, readjudication and disposition in 
accordance with the Court's Order.
The issue of service connection for PTSD is the subject of 
the remand portion of this decision.


FINDINGS OF FACT

1.  Service connection for residuals of left shoulder 
dislocation was previously denied by the Board in a decision 
dated in May 1987.

2.  Evidence associated with the claims file since the May 
1987 Board decision is not so significant that it must be 
considered in order to fairly decide whether the appellant is 
entitled to service connection for residuals of left shoulder 
dislocation.

3.  The appellant has presented no competent evidence which 
shows either the presence of hearing loss or tinnitus during 
service or a nexus between any incident or event of service 
and treatment and diagnosis of hearing loss/tinnitus first 
noted after service on an August 1990 private audiological 
examination.


CONCLUSIONS OF LAW

1.  The Board's May 1987 decision which declined to reopen a 
previously denied claim of entitlement to service connection 
for residuals of left shoulder dislocation is final.  
38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100(a) 
(1999).

2.  New and material evidence has not been submitted to 
reopen the previously denied claim of service connection for 
residuals of left shoulder dislocation.  38 U.S.C.A. § 5108 
(West 1991); 38 C.F.R. § 3.156(a), (c) (1999).

3.  The claim of entitlement to service connection for 
hearing loss and tinnitus is not well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual and Procedural Background of Case

A.  History of Case Prior in Time to Filing of Present Claim 
and Appeal

The appellant served on active duty in the United States Navy 
from October 1968 to December 1969.  The record reflects that 
he prepared his original claim seeking VA disability 
compensation or pension benefits while he was still on active 
duty in the Navy, specifically, on November 6, 1969.  The RO 
received the claim on December 22, 1969, seven days after his 
discharge from the Navy on December 15th.  He claimed 
entitlement to service connection for a left shoulder 
disability, stating, "I have cronic [sic] dislocation of my 
left shoulder.  I hurt my shoulder in 1967.  It came out 
about 3 times prior to entering service.  Now I have been on 
active duty for 13 months and it comes out very easily."  He 
stated that he received treatment in service for shoulder 
dislocations in November 1968 and March 1969.

In support of his original claim, the appellant submitted a 
prescription note from a private physician, N. P. Horner, 
M.D., dated December 22, 1969.  Dr. Horner stated that the 
appellant "[h]as chronic subluxation of left shoulder" and 
"[h]ad history of rheumatic fever [in] 1957 - no cardiac 
murmur detected."  In addition, the RO obtained copies of 
his service medical records.

The appellant's service medical records included the report 
of his enlistment physical examination conducted in May 1968.  
On examination, no abnormalities were reported except for a 
notation that he had an old laceration to the right third 
finger that had healed.  However, the appellant's "Report of 
Medical History" prepared in conjunction with the enlistment 
examination noted that in addition to the finger laceration, 
he had a history of rheumatic fever at age 7, although no 
residuals or heart murmurs were found; Meckel's diverticular 
in 1957, asymptomatic since; and, a history of sinusitis and 
a fractured hand and left clavicle bone that were treated by 
aforesaid Dr. Horner.  The military service examiner 
described the old left clavicle fracture as "Ok now."

Additional service medical records included some dental 
records and an audiogram report dated in May 1968 that showed 
hearing at 35-40 decibels in the 4000 Hertz (H) range for the 
left ear and hearing at the 35-40 decibels in the 6000 H 
range for the right ear.  No complaints or diagnoses of 
hearing loss or tinnitus were noted in service.

Further, a clinical record of an ophthalmology examination 
conducted in November 1969 was contained in the appellant's 
service medical records.  The report noted provisional 
diagnoses of near vision defect, recurrent subluxating left 
shoulder, and old rheumatic fever.  Objectively, the report 
only noted that he needed vision correction for both eyes.

In addition to the above, the service medical records 
contained the report of a Medical Board dated December 4, 
1969.  The report noted that the appellant was admitted to 
the Portsmouth, Virginia, Naval Hospital on November 5, 1969, 
with a history of recurrent subluxation of the left shoulder 
on multiple occasions for the past two years.  It also was 
noted that he sustained an initial dislocation of his left 
shoulder following a fall from a horse three years prior to 
his admission, or approximately in November 1966.  On 
admission, the appellant complained of discomfort in the left 
shoulder during the episodes of subluxation and decreased 
strength on abduction of the shoulder.  Past history was 
noted to be significant for a repaired laceration of the PIP 
joint of the right hand at age 18, history of a gastric 
operation for removal of a tumor in 1958, and a history of 
rheumatic fever in 1958.  The report reflects that he 
remained hospitalized until December 8, 1969.

Examination of the left shoulder during his November-December 
1969 hospital stay at the Portsmouth facility revealed 
clinical subluxation and grating with full range of motion.  
The remainder of the clinical examination was noted to be 
"completely within normal limits."  Laboratory data, 
including blood tests and chest x-ray, also was within normal 
limits.  In addition, x-rays of the left shoulder were not 
remarkable.  Based on these findings, the Medical Board 
diagnosed recurrent subluxation, left shoulder, and 
recommended that the appellant be discharged from further 
service in the Navy due to unfitness for active duty.  The 
Medical Board specifically concluded that the appellant's 
left shoulder problem pre-existed service and was not shown 
to have been aggravated therein.  The appellant waived his 
right to rebut the Medical Board's findings or to demand a 
hearing and a Physical Evaluation Board.  As a result, he was 
administratively discharged from the Navy on December 15, 
1969.

By rating decision in January 1970, the RO denied entitlement 
to service connection for a left shoulder disability on the 
basis that he had a pre-existing condition that was not 
aggravated during service.  The evidence considered by the RO 
at that time consisted of the aforementioned statement of Dr. 
Horner as well as the appellant's service medical records.  
Notice of the RO's rating decision was sent to the appellant 
by letter dated February 20, 1970.

No further action was taken by the appellant until September 
1971, at which time he filed a "Statement in Support of 
Claim," VA Form 21-4138, again requesting entitlement to 
service connection for residuals of an injury to his left 
shoulder.  The appellant related that his left shoulder 
continued to give him trouble during service, eventually 
leading to his hospitalization at the Portsmouth facility in 
1969, as detailed above.  He further stated that he currently 
was having "constant trouble" with his left shoulder and 
that as a result, he underwent surgery for his left shoulder 
at the VA Hospital (VAH) in Mountain Home, Tennessee, on 
September 9, 1971.  In this statement, the appellant denied 
that he had a pre-existing condition of the left shoulder.  
He stated that he broke his collar bone when he was fifteen 
years of age, but that he did not hurt his shoulder.  He 
further stated that Dr. Horner treated him for the collar 
bone injury and that he was sure Dr. Horner could provide a 
statement to that effect.  He went on to state that he would 
concede the pre-existing service nature of the left shoulder 
if the RO would agree with him that it was aggravated during 
service.

In connection with his September 1971 claim, the RO obtained 
medical records from the Mountain Home-VAH corresponding to 
the shoulder surgery performed at that facility.  An 
operative report indicated that the appellant was admitted on 
September 8, 1971, for recurrent dislocation, left shoulder.  
X-rays taken at that time showed a subcoracoid, recurrent.  
Surgically, a Bankart procedure was performed on September 
9th involving placement of two screws anteroanteriorly about 
the lower margin of the left sphenoid.  The report noted that 
the position of the lower screw was questionable, but it was 
decided that it did not need replacing.  The appellant was 
cooperative and did well postoperatively.  He was discharged 
on September 13th with instructions to return on September 
20th to have his sutures removed.

A follow-up report dated June 30, 1972, indicated that the 
appellant was doing satisfactorily for nine months after 
surgery.  Specifically, he had had no definite dislocation 
except for one episode of "catching" in the shoulder joint.  
In addition, he reported that at times he was unable to move 
his shoulder due to it being in a painful position.  The 
appellant was advised to continue progressive resistance 
exercises for his left shoulder in all ranges of motion and 
to continue the exercises for at least another year.  The 
report indicated that the prognosis was good for function 
with some residual disability.  Finally, it was noted that he 
was working but that he did no lifting using his shoulder.

In July 1972, the RO again denied service connection for the 
left shoulder disorder, noting that service connection was 
previously denied by rating decision in January 1970, and 
that there was no evidence submitted that would require 
reconsideration of the claim.  However, notice of the RO's 
rating decision sent by letter dated July 13, 1972, only 
informed him of the denial of his newly-raised claim seeking 
entitlement to service connection for residuals of a head 
injury.

The appellant did not appeal the RO's July 1972 rating 
decision, but he filed a VA Form 21-4138 in April 1973 in 
which he again requested entitlement to service connection 
for an injury to his left shoulder.  He stated that he fell 
down a hatch aboard the United States Ship (USS) AMERICA (CVA 
66) in 1969 injuring his head and left shoulder.  With regard 
to the left shoulder, the appellant stated that he had 
surgery in 1971 and that he was going to need further surgery 
in the near future.  The RO denied his claim by letter 
decision dated April 18, 1973, and, subsequently, he 
perfected an appeal to the Board as to this issue.  His 
appeal to the Board was denied by decision dated February 14, 
1975.  Detailed below is the evidence that was before the 
Board at that time.

The evidence submitted and/or obtained in conjunction with 
the appellant's 1973 appeal to the Board included lay 
statements from two former servicemembers who served with him 
aboard the USS AMERICA.  A statement of [redacted], a 
former third class petty officer, dated April 15, 1973, 
indicated that the appellant was treated aboard the AMERICA 
for a cut to the head and a "serious injury to his 
shoulder" when he fell down a hatch ladder.  Mr. [redacted] 
stated that records must have been prepared showing that the 
injury occurred and that treatment was provided in the sick 
bay.  He also stated that it was his understanding that if an 
injury was serious enough, the servicemember would be sent to 
the closest Naval medical facility.  In this case, Mr. 
[redacted] stated that the appellant was sent to the Portsmouth 
facility and that prior to his departure from the USS AMERICA 
he paid the appellant a visit at which time he noted that 
part of his head was shaved and a gash stitched up and that 
he could place three of his fingers about one inch deep into 
his left shoulder due to the dislocation.  He further stated 
that the pain the appellant was experiencing was evident.  He 
also stated that it was evident to him that the appellant 
could not use his arm as effectively as he did before, 
although he did not say how he knew how well the appellant 
used his arm before the injury.

A statement of former seaman apprentice [redacted],
dated May 31, 1973, essentially reiterated what Mr. [redacted] 
stated regarding the appellant's head and left shoulder 
injuries sustained while they served aboard the USS AMERICA.

In addition to the above, the evidence associated with the 
appellant's appeal to the Board included his statement 
received by the RO in June 1973.  In this statement, the 
appellant emphasized that he did not sign a certificate to be 
discharged from the Navy as soon as possible, but instead, he 
signed a certificate to seek immediate assistance with VA.  
He also stated that he never appeared in person before a Navy 
medical board and that he did not in fact turn down a 
physical evaluation board because he was unaware of his right 
to do so.  In addition, he stated that naval medical 
personnel at the Portsmouth facility told him that it was too 
soon to operate on his left shoulder and therefore, he was 
advised to go home, let "Mother Nature" take its course, 
and if need be, go to VA for medical treatment if the left 
shoulder joints continued to cause him problems.

The RO received additional medical evidence during the 
pendency of his 1973 appeal to the Board.  A statement from 
his physician, Dr. Horner, dated June 18, 1973, read, "The 
above [appellant] has been treated by me since June 24, 1954.  
He was treated for a fracture of the left clavicle in October 
1964.  He made an uneventful recovery.  At no time has he 
been treated for a subluxation or dislocation of the left 
shoulder."  The RO also received a copy of the September 
1971 VA hospital report detailing his left shoulder surgery.

In response to the appellant's contentions, the RO requested 
the NPRC to search its repositories for any additional 
service medical records corresponding to treatment provided 
on the USS AMERICA.  NPRC responded in September 1973 with a 
negative replay for additional records, stating that all 
available reports were previously furnished to the RO in 
February 1970.

The RO also obtained copies of hospital reports from the 
Bristol Memorial Hospital (Bristol, Tennessee) detailing a 
hospitalization in August 1973 for excision of a adherent 
scar on the appellant's left shoulder.  The summary report of 
hospitalization indicated that the appellant had a history of 
a Bankart repair of the left shoulder three years ago and 
that presently he had some residual pain in the shoulder that 
was possibly due to the surgical screws placed about the 
glenoid labrum.  However, it was further indicated that his 
admission was primarily for a complaint of pain associated 
with the surgical scar, described as thin, adherent and 
located over the delto-pectoral groove.  Additional details 
regarding his medical history were noted to be significant 
for overall good health in recent years, a history of a 
rheumatic cardiac murmur during childhood, a history of an 
omphalocele repaired at age 7 without residuals, and the 
aforementioned history of left shoulder repair in 1970.

Physical examination findings noted at the time of his August 
1973 hospitalization revealed normal findings regarding his 
head (normal cephalic), eyes (pupils equal, pupillary 
reactions to light normal, acuity good), ears (external 
canals and acuity normal), lungs (clear to percussion and 
auscultation), heart (no murmurs audible, normal sinus 
rhythm, blood pressure on admission was 120/70, pedal 
pulsations palpable and full), abdomen (soft, no masses, no 
hernia, well-healed right para-median scar, liver, kidneys 
and spleen not palpable), skin (normal), and neurological 
(grossly physiological).  Regarding his extremities, it was 
noted that motion of the left shoulder was slightly impaired 
in elevation and internal rotation.  Also noted was the 
adherent scar that measured four inches in length with no 
evidence of excoriation or evidence of infection.  In 
addition, there was no evidence of significant atrophy or 
neurological deficit.  The operative report indicated that 
the scar was excised without complications.  In addition, a 
small palilloma at the lower pole of the scar was excised.  
The pathology report noted that the diagnosis was scar, left 
shoulder, excisional biopsy, manifested by chronic 
inflammation and a fibroepithelial polyp.

The appellant appeared at a hearing before the Board on 
November 21, 1973, and a transcript of that hearing is of 
record.  In summary, the appellant testified that he was in 
sound physical condition when he entered military service in 
October 1968.  He testified that he strained his left 
shoulder playing basketball as a junior in high school and 
that the injury healed without need for medical attention or 
surgery.  In addition, he testified that he broke his collar 
bone falling off a horse four years before he joined the 
Navy, in October 1964, at which time he saw his family 
physician, Dr. Horner.  He stated that this injury did not 
involve an actual injury to his left shoulder joint.  Upon 
subsequent questioning, the appellant testified that the fall 
from the horse injury occurred prior to the aforementioned 
basketball injury, when he was a freshman in high school.  
Further, the appellant testified that he had a thorough 
physical when he entered military service at which time he 
reported that he had a problem with his left shoulder every 
once in a while when he did strenuous work or if he lifted 
something the wrong way.  He also described treatment for 
pain in his left shoulder only one week into his term of 
duty.  He stated that he was sent back to duty and did not 
have any further problems during his basic training.  He 
further stated that his shoulder got stronger as a result of 
his training exercises.

The appellant next testified to the circumstances of his 
injury aboard the USS AMERICA, which the Board will quote for 
the sake of clarity:

I was aboard ship working and it came 
time to go to chow and I went down to the 
mess decks.  I started down a ladder 
which went from the hanger decks to the 
mess decks and I don't know whether it 
was the first or second step, but anyway, 
I was going down the ladder.  One of the 
steps gave way with me.  Well, when it 
did, I just lunged forward and fell 
completely down the hatch.  [Transcript 
at p. 8].

Later, he described additional details concerning the 
incident:

A water main at the foot of the steps 
over near the bulkhead that had a shut-
off valve on it and there is something 
like a long stem with like a steering 
wheel on it that you open and close the 
valve.  Well, when I lunged forward, I 
remember pulling out my hands so that 
when I did hit the wall or the floor why 
I could break the fall.  Well, in either 
case I didn't do this.  I hit the stud 
bolt with the side of my head up in here 
and then, of course, proceeded to fall on 
into the corner of this bulkhead.  
[Transcript at p. 9].

The appellant testified that the next thing he remembered was 
getting up and then seeing four or five guys around him who 
carried him to sick bay in a wire stretcher.  He stated that 
blood was on his face and he claimed that he had lost 
consciousness.  For treatment, the appellant stated that they 
shaved his head in the area of the gash and sewed it up.  He 
could not remember if x-rays were taken.  For his shoulder, 
he stated that it was hurting real bad and that it turned 
blue the next day.  However, he stated that the examiner told 
him that it was only a sprain and therefore, he was ordered 
back to work.  The appellant testified that he went back to 
work on the flight deck, but after a while, his left shoulder 
would fall out of place if he tried to lift anything.  He 
stated that he told his commander about his problem and as a 
result was sent back to sick bay.  He was then told not to 
worry about it again and was sent back to work.  Later in the 
hearing, the appellant testified that the ship changed 
doctors and the new doctor told him that he needed surgery 
and arranged for him to be sent to a Naval medical facility.  
At Portsmouth, the appellant testified that the physicians 
recommended that he seek treatment following discharge from 
VA if the shoulder continued to give him problems.  He 
further testified that he continued to have problems after 
service while helping out with chores on his family's dairy 
farm.  He had his surgery in 1971 after having increasing 
difficulty performing his job as a telephone equipment 
inspector.  He stated that he went for surgery a second time 
in 1973 to remove scar tissue from the 1971 surgery.

Regarding his original claim for service connection, the 
appellant testified that he was mistaken in reporting on his 
claims form that he had dislocated his shoulder three times 
prior to service; what he meant to say was that he thought 
the shoulder popped out of joint when in his view the muscles 
strained and caused pain.  He further testified that the 
reason physicians kept recording his medical history as 
involving recurrent shoulder separations was because he would 
report for historical purposes that he broke his collar bone 
prior to service in the fall from a horse.  He indicated that 
the military physicians must have assumed, however 
incorrectly, that his prior injury involved a shoulder 
separation.  He also stated that after the ladder fall, he 
went back to sick bay "continuously" for treatment of his 
left shoulder complaints.  The appellant also stated that no 
official investigation of his ladder fall was conducted 
following the accident in the summer of 1969, although he 
informed his division commander of what happened.

Prior to a decision on his claim, the Board remanded the case 
in January 1974 to request another search inquiry to obtain 
any additional service medical records from the USS AMERICA 
and the Portsmouth facility and to request that the appellant 
provide copies of any available treatment records from Dr. 
Horner.  In response to the RO's first development letter, 
Dr. Horner submitted no actual treatment records other than a 
"Certificate of Attending Physician," dated April 17, 1974 
that stated only the following: "Fracture left clavicle Oct. 
17, 1964.  Uneventful recovery".

Regarding the service records, a response from NPRC received 
in April 1974 indicated that a search for additional records 
produced no records corresponding to treatment in 1969 aboard 
the USS AMERICA.  A response from the Portsmouth Naval 
Hospital received in March 1974 disclosed that records dated 
in 1969 were in route to the NPRC and that as soon as those 
records were received, they would be forwarded to the RO.  
However, in June 1974, NPRC informed the RO that it had yet 
to receive any records from Portsmouth and accordingly, the 
RO was advised to resubmit its search request in 30 days.

While action was pending on the aforementioned search 
inquiry, the RO was notified in September 1974 that the 
Nashville-VAH had no records pertaining to the appellant.  
The RO undertook this action in response to a letter from the 
appellant's United States Representative who advised the RO 
that he was recently admitted to the Nashville facility for 
unspecified "further medical care and treatment."

As alluded to above, additional development action by the RO 
was taken in order to obtain records from Dr. Horner.  
Specifically, a field examination ordered by the RO succeeded 
in producing treatment records from Dr. Horner.  These 
records, dated from February 1956 to May 1968, and from 
December 1969 to June 1973, consisted of handwritten notes 
showing treatment for rheumatic fever on an entry dated in 
December 1961; a fractured clavicle on an entry dated in 
October 1964, at which time an x-ray was apparently taken of 
his left shoulder; and, a notation of chronic subluxation of 
the left shoulder in service and a history of rheumatic fever 
in 1957 with no cardiac murmur previous to service on an 
entry dated in December 1969.  Dr. Horner's final entry, 
dated June 18, 1973, the same date of his above-cited 
statement, indicated that he prepared a statement to the 
effect that the appellant had no history of dislocating his 
shoulder.

On the basis of the above, the Board concluded in its 
decision of February 1975 that the appellant's left shoulder 
disorder preexisted service and was not aggravated therein, 
and that in light of the procedural history of the case, the 
additional evidence obtained following the RO's original 
disallowance did not provide a new factual basis to permit 
allowance of service connection.  Parenthetically, the Board 
notes that for purposes of the present appeal it appears that 
some of the appellant's service medical records may have been 
misfiled in the claims file at various times in the past 
because it is clear from reading the Board's 1975 decision 
that at that time the Board had access to and reviewed all of 
his available service medical records, including treatment 
reports detailing the January 1969 laceration injury, 
treatment for flashburns of both eyes in June 1969, treatment 
in July 1969 for a left foot injury sustained in a fall, a 
report dated in September 1969 reflecting a medical history 
significant for the appellant's complaints that he 
experienced recurrent dislocation of his left shoulder 
(although the Board references that the report showed no 
treatment for such complaints at that time), a report showing 
treatment in October 1969 for complaints of pain in the left 
shoulder which included an historical reference to a shoulder 
injury two year ago with a history of occasional dislocations 
thereafter, and a report of a special orthopedic examination 
conducted in October 1969 which revealed that the appellant's 
shoulder could be subluxated on physical examination.

For purposes of history, it was noted at the time of the 
October 1969 orthopedic examination that the appellant 
experienced recurrent dislocation of his left shoulder on 
multiple occasions since the first episode about two years 
ago when a horse fell on him.  Physical examination revealed 
that the shoulder could be easily subluxated with grating on 
range of motion.  X-rays showed a voluntary subluxation but 
there was no evidence of complete dislocation.  The 
diagnostic impression was recurrent subluxation.  It appears 
that the Board then reviewed the report of his Medical Board 
proceedings which are detailed above in this decision.

In October 1981, the RO received copies of the appellant's 
appeal to the Navy's Central Physical Evaluation Board.  
These documents reflect that he challenged the basis of his 
discharge from the Navy.  His appeal was denied.  The Navy 
concluded that his service medical records did not 
corroborate his account of sustaining the left shoulder 
injuries, as alleged above, while serving aboard the USS 
AMERICA.  In support of its position that his discharge for 
unfitness due to a pre-existing left shoulder condition was 
proper, the Navy cited to his service medical records and a 
letter written by his parent-guardian in November 1969 which 
read, ". . .  about 14 months ago, our son we call him 
joined the Navy to keep from going to the Army.  At that 
time, they took him in perfect condition only nervous.  We 
knew he had a shoulder joint that would come out of place.  
The doctor told him they didn't care about that."

Included with the documents received by the RO in October 
1981 was a copy of a service medical record showing clinic 
visit entries on the USS AMERICA for the months of January 
and February 1969, and a letter he wrote to the Navy's 
Central Physical Evaluation Board in which he provided the 
same account detailed above concerning his fall down a ladder 
in the summer of 1969 while aboard the USS AMERICA.

No further action was taken by the appellant on his claim 
until May 1983 when he filed a "Statement in Support of 
Claim," VA Form 21-4138.  He claimed service connection for 
a number of disorders, to include a subluxated left shoulder.  
In support of his claim, he submitted medical statements from 
two private physicians, Dr. E. M. Stirman, M.D., and Dr. H. 
J. Williams, M.D.

Dr. Stirman prepared two statements.  His statement dated 
April 28, 1983, addressed to whom it may concern, stated that 
the appellant's ". . .  latest ventral hernias are 
undoubtedly related to his prior problems in this area" and 
his ". . .  current stress is related to his hernia repair, 
shoulder problems and prior work problems."  Dr. Stirman's 
other statement, dated May 11, 1983, also addressed to whom 
it may concern, indicated that the appellant had been a 
patient of his since December 1979 and that his past medical 
history was significant for an anterior dislocation of the 
left shoulder and a Bankart procedure in 1970 with ". . .  
trouble with this shoulder since we have known him."

The statement of Dr. Williams was dated May 9, 1983, and was 
addressed to whom it may concern as well.  The statement 
indicated that a diagnosis of recurrent subluxation of the 
shoulder was made following an evaluation on March 23, 1983, 
at which time he underwent surgery, a Bristow procedure with 
removal of previous internal fixation screws.  Dr. Williams 
indicated that the appellant was presently in the process of 
healing the surgical incision and on a rehabilitation program 
for the shoulder.

The appellant's 21-4138 form also indicated that he was a 
regular patient at the Mountain Home-VAMC and that additional 
information could be obtained from that facility.  It is 
unclear from whom or how such records were associated, but 
the RO received some medical records from the Mountain Home-
VAMC in June 1983.  One record was a copy of the discharge 
summary of the September 1971 left shoulder (Bankart 
procedure) surgery.  The other record was the operative 
report for that surgery.  This report was not previously of 
record and it described essentially what was detailed in the 
discharge summary, providing greater details concerning the 
placement of the screws.

On the basis of the above, the RO denied service connection 
for the left shoulder by rating decision in July 1983 on the 
basis that the evidence recently submitted was not new and 
material to allow reopening of the previously denied claim 
for this condition.  The appellant was notified of this 
rating decision by letter dated July 21, 1983.

In August 1983, the RO received additional medical records in 
the form of a statement from a Dr. G. A. Rannick, M.D., dated 
May 19, 1983, and an attending physician's statement signed 
by the aforementioned Dr. Stirman on behalf of the 
appellant's employer, a telephone company.  Dr. Rannick's 
statement was addressed to the Tennessee disability office 
and in essence, reflected this physician's opinion that the 
appellant was disabled due to his recent left shoulder 
surgery in 1983 for doing any jobs requiring lifting of heavy 
objects and climbing power lines.  Dr. Stirman's statement 
was dated April 18, 1983, and it indicated that the appellant 
was first examined by Dr. Stirman on March 2, 1983, in 
connection with a on-the-job related accident, and that in 
his opinion, the appellant was completely disabled due to the 
following:  4 hernias, fixed left shoulder, some disc 
degeneration, spastic colon, stress, and costocondrosis.

The RO reviewed the above-cited evidence in August 1983, but 
confirmed and continued its prior denial of the appellant's 
claim filed in May 1983.  He was notified of the RO's 
decision by letter dated August 23, 1983.

No appeal of the RO's decisions cited above was filed by the 
appellant, however, the record reflects that he appealed a 
decision by the RO to deny him pension benefits in October 
1983.  In connection with that claim, the appellant submitted 
two additional medical statements, one from Dr. Rannick dated 
October 17, 1983, which was again addressed to the Tennessee 
disability office and, in essence, reflected his opinion that 
the appellant was permanently disabled due to problems with 
recurrent ventral hernias, and the second from Dr. Stirman, 
dated January 9, 1984, which indicated that the appellant was 
disabled due to ventral hernias and that arrangements were 
being made to send him to the Duke University Medical Center 
for evaluation of possible additional surgery.

The Board remanded the appellant's pension claim in October 
1984 to order a VA compensation and pension examination.  The 
examination was conducted in November 1984.  The appellant 
reported that he was disabled due to an accident on April 7, 
1982, and his present complaints included stomach cramps, 
abdominal pain, chest pain and shortness of breath, left 
shoulder pain and numbness in the left hand, and infected 
sores on abdominal scars.  The orthopedic portion of the 
examination denoted that he had a history of a dislocated 
left shoulder as a result of a fall in the Navy in the summer 
of 1969, with a recurrent dislocation thereafter.  In 
addition, his history was significant for the Bankart 
procedure in 1971, following of which he had subluxation and 
mechanical irritation from screws, a second operation in 1974 
under the care of Dr. McFaddin, and a third operation in 
March 1983 involving a Bristow procedure.  On examination, he 
had limited range of motion in the arm and shoulder joint and 
deltoid muscle atrophy.  The other parts of the examination 
disclosed no other relevant abnormalities with respect to the 
left shoulder and hearing loss/tinnitus issues presently 
before the Board.  On the basis of these findings, the 
appellant was diagnosed with partial ankylosis, left shoulder 
joint, among other unrelated disorders.

In addition to the above, the appellant underwent psychiatric 
evaluation by Dr. J. C. Neale, M.D., on June 20, 1983, the 
report of which is of record and is dated June 25, 1983.  
During his evaluation the appellant reported a history of a 
"crushed" shoulder sustained in the Navy.  Dr. Neale found 
the appellant to be extremely agitated and depressed due to 
his physical and employment problems.  His past psychiatric 
history was significant for a recent evaluation by a Dr. 
Savage who also found him to be agitated and depressed, 
according to the appellant.  Dr. Neale did not, however, find 
any symptoms of psychosis and as a result, his diagnostic 
impression was agitated depression, severe.

Also submitted with the record was a January 1985 statement 
from the appellant's pastor, who, in summary, stated that he 
was aware of the appellant's many physical problems and 
difficulties he was experiencing relative to his ability to 
work and provide for his family.

Following the Board's denial of his pension claim in April 
1985, the appellant attempted to reopen that claim in May 
1985 with the submission of a VA hospital report that 
reflected a 24-day period of inpatient hospitalization in 
February-March 1985 for somatization disorder.  He was 
admitted for complaints of "not being able to handle the 
stress" and increasing associated emotional problems.  His 
medical history was noted to be significant for multiple 
medical problems, as detailed above, to include surgery for 
his left shoulder.  Upon admission, the appellant complained 
of chronic left shoulder pain, back pain, and various other 
pains and numbness in his extremities.  In addition, he 
reported that he was increasingly troubled by and had 
nightmares about the beating death of his 5 year old brother 
which he claimed to have witnessed when he was 4 years old.  
He also stated that he was troubled by a beating of an 
enlisted man which he claimed to have witnessed while he was 
in the Navy.  He had no prior history of psychiatric 
hospitalizations and he stated that his treatment for 
psychiatric problems was limited to the evaluations he had in 
1983 by the aforementioned Drs. Neale and Savage.

During his course of hospitalization, general medical 
consults revealed no abnormal physical pathology.  As a 
result, the medical consult found the appellant's multiple 
somatic complaints to be either of obscure origin or derived 
from previous injuries.  As noted above, he was discharged in 
March 1985 and diagnosed with somatization disorder, rule out 
atypical depression, and rule out psychogenic pain disorder 
on Axis I; and recurrent ventral hernias, left shoulder pain 
and back pain on Axis III.

No further action was taken by the appellant regarding his 
disability compensation claim until January 1986 when he 
filed a VA Form 21-4138 requesting entitlement to service 
connection for a number of disorders, to include subluxation 
of the left shoulder.  He requested consideration of the left 
shoulder claim on the basis of in-service aggravation.  The 
appellant went on to state that he was physically fit when he 
entered the Navy and to prove it, he submitted a copy of a 
certificate showing that he was a member of the recruit drill 
team while in basic training.  He stated that he could not 
have been on such a team if he had problems with his left 
shoulder.

In his statement of January 1986, the appellant provided 
additional information concerning how he got hurt while 
serving aboard the USS AMERICA.  Specifically, he 
acknowledged that he had previously stated on a consistent 
basis that he fell down a ladder, but in fact, he claimed to 
have been deliberately pushed down the ladder in one of 
several attempts on his life.  He went on to describe an 
incident that occurred aboard ship in January or February 
1969 in which he was the only witness to a beating of an 
airman by several men in a bathroom.  He stated that he was 
the sole reason the culprits were identified and prosecuted.  
He further stated that records from a "Master of Arms" 
investigation and a "Captain's Mass [sic]" trial should be 
available to corroborate his story.  The appellant then 
stated that during and after the trial proceedings, he 
received many threats on his life and that as a result he 
could not sleep for fear of someone sticking him with a 
knife.  He then related the ladder fall incident to a 
situation where he was running away from men who were 
threatening him, the fall of which caused injuries to his 
left shoulder, head and ankle.  The appellant also stated 
that he continued to live in fear of his life while he was 
patient at the Portsmouth naval medical facility and that was 
why he did not fight his unfitness discharge.  He stated that 
he remained silent about this incident until March 1985 when 
he was hospitalized at the Mountain Home-VAMC, as detailed 
above.

In support of his 1986 claim, the appellant submitted mainly 
duplicates of records previously submitted and reviewed by 
the RO and the Board, including the lay statements of Messrs. 
[redacted] and [redacted], the discharge summary from his 
February-March 1985 hospitalization at the Mountain Home-
VAMC, copies of service medical records, and a copy of Dr. 
Horner's statement of June 18, 1973.

However, the appellant submitted "new" evidence in the form 
of the report of a favorable decision from the Social 
Security Administration (SSA) dated July 9, 1985.  This 
decision was not previously reviewed by either the RO or the 
Board in connection with any claim for VA benefits.  The 
appellant was found to be disabled with the meaning of the 
SSA Act by virtue of his multiple physical and mental 
problems detailed above, specifically, severe recurrent 
ventral wall hernias, pain and weakness in the left shoulder, 
back pain, shortness of breath and a dysthymic disorder with 
somatization.

On the basis of the above, the RO again denied service 
connection for the claimed left shoulder disability by rating 
decision in February 1986, on the basis that the evidence 
recently submitted was not new and material to allow 
reopening of the previously denied claims for this condition.  
The appellant was notified of this rating decision by letter 
dated March 7, 1986.  Subsequently, the appellant perfected 
an appeal with regard to this issue, but his appeal was 
denied by decision of the Board dated May 4, 1987.  The Board 
concluded that the evidence received since the Board's 1975 
decision did not provide a new factual basis for a grant of 
service connection.

B.  History of Case Since Filing of Present Claim and Appeal

The claim on appeal was initiated by the appellant's 
congressional inquiry letter received by the RO in February 
1991.  He again claimed entitlement to service connection for 
a left shoulder disorder and in support of his claim he 
submitted VA in/outpatient treatment reports from the 
Mountain Home-VAMC dated from 1971 to 1989 and the statement 
of Dr. J. M. Chandler, M.D., dated February 5, 1991.

Dr. Chandler's statement indicated that the appellant was 
examined on January 7, 1991, at which time he was found to 
have pain in the left shoulder with objective manifestations 
of crepitance with range of motion with pain radiating into 
the shoulder, the anterior chest and with discomfort along 
the medial scapular margin.  Dr. Chandler further stated that 
x-rays previously taken in June 1988 showed a biceps tendon 
transfer through the head with loosening of internal 
fixation, flattening of the humeral head, and osteophyte 
formation consistent with post traumatic arthritis.

The VA medical records dated from 1971 to 1989 can be divided 
into a number of categories for the sake of clarity: 
lab/medication chart reports generated in connection with the 
appellant's February-March 1985 hospitalization at Mountain 
Home-VAMC; duplicates of his 1971 VA hospitalization for left 
shoulder surgery; x-ray/upper gastrointestinal series reports 
dated from 1980 to 1989, which included an x-ray taken in 
February 1980 of the left shoulder that showed two metallic 
screws in the inferior aspect of the glenoid fossa with no 
evidence of recent injury, dislocation or soft tissue 
calcifications; nursing/consultation notes generated in 
connection with the February-March 1985 hospitalization at 
Mountain Home; outpatient reports dated from 1984 to 1989 
showing treatment mainly for general complaints of pain in 
multiple body areas; and, discharge summary, nursing and 
medical consultation reports for the appellant's September 
1984 hospitalization at Mountain Home for duodenitis and 
other conditions not relevant to the matters under 
consideration.

With respect to the above, the Board notes that psychology 
consultation reports associated with his February-March 1985 
hospitalization included his account of the beating incident 
aboard the USS AMERICA and the threats he endured from the 
crewmen who did not want him to testify against the 
assailants.  This report noted that he was afraid to sleep 
and that he was struck in the back while going down a ladder 
causing him to lung forward and strike his head, neck and 
shoulder.

On the basis of the above, the RO denied service connection 
for the claimed disability involving the left shoulder by 
confirmed rating decision in March 1991.  The appellant was 
notified of this rating decision by letter dated March 8, 
1991.  In September 1991, he filed a notice of disagreement 
with regard to this rating decision.  He also requested 
consideration of other claims, to include entitlement to 
hearing loss and tinnitus (caused by working on a flight deck 
in the Navy) and PTSD.

At the time of the filing of his notice of disagreement in 
September 1991, the appellant submitted additional medical 
records, including duplicates of VA in/outpatient reports 
previously submitted and considered by the RO and the Board.  
Medical records not previously reviewed included a letter 
from Dr. Stirman dated June 8, 1987, that was addressed to an 
attorney.  Dr. Stirman stated that he had known the appellant 
since 1979 and was aware of his medical problems from that 
point in time.  He stated, however, that the period in 
question was from June 1984 to the present and that during 
this period, he saw the appellant nine times.  Treatment 
provided by Dr. Stirman consisted of the following: suture 
repair on his foot in June 1984, at which time he noted that 
the appellant was having problems with depression; next seen 
in March 1986 when the appellant relayed his problems dealing 
with VA and subsequent placement on Elavil and biofeedback, 
and Dr. Stirman treated him for pain associated with his 
ventral wall hernia and depression; next seen in January 1987 
for complaints associated with a new ventral hernia and pain 
in his left arm and shoulder, and Dr. Stirman found that he 
still had multiple ventral wall defects, depression and back 
pain.  Dr. Stirman stated in his letter that he had not seen 
the appellant since January 1987.

The new medical records also included a report dated in 1975 
from a Dr. H. H. Bockian, M.D., that noted that the appellant 
was diagnosed with acute schizophrenic reaction with passive 
and pseudoneurotic features.  The other new medical evidence 
consisted of the psychology consultation report prepared in 
connection with his September 1984 hospitalization at the 
Mountain Home-VAMC.  The appellant complained that he was 
nervous due to all the hurt he had suffered for so long and 
by the fact that he lost his career and could not get better 
despite following his doctors' advice and instructions.  
Objectively, the VA clinical psychologist noted that he was 
somewhat obsessive over his physical illness and financial 
troubles.  His affect was labile with easily stimulated 
anxiety symptoms such as sweating and flushing.  His 
psychological profile indicated prominent somatization in a 
person who was rather anxious and felt flawed.  On the basis 
of these findings, the psychologist diagnosed chronic anxiety 
disorder.

The RO received additional records submitted by the appellant 
in February 1991.  These records consisted of duplicates of 
his service medical records, including USS AMERICA sick bay 
reports showing treatment for chest pains and pains from a 
dislocated left shoulder in October 1968; treatment for pain 
in his left side in April 1969, at which time it was noted 
that he had a history of mid to upper quadrant pain for the 
past four months for which a diagnosis of rule out adhesions 
was made; a left ankle sprain in July 1969 after the 
appellant fell in a hole, treatment for pain in his left 
shoulder in October 1969, at which time he reported a history 
of injuring his left shoulder two weeks ago; and, from the 
hospital reports associated with his November 1969 
hospitalization at the Portsmouth naval medical facility, a 
reference to a finding that he had an atypical systolic heart 
murmur after exercise.  The diagnoses reported on the basis 
of his inpatient physical examination included recurrent 
subluxation, left shoulder.

As mentioned above, the procedural history of this case 
reflects that the appellant's service medical records were 
previously reviewed by the RO and the Board in prior final 
decisions.  Specifically, it is clear from review of the 
Board's February 1975 decision that all of these records were 
in the claims file at the time the Board rendered that 
decision.  However, it appears that the service medical 
records were misfiled and/or misplaced in the voluminous 
three-volumes claims file during the course of multiple 
appellate-level reviews of claims filed by the appellant for 
VA pension and compensation benefits.  In any event, it is 
not shown that any of his service medical records were newly 
obtained and made part of the record in connection with the 
claim on appeal.  Hence, all of his available service medical 
records are duplicates of records previously considered by 
the RO and the Board.  While summaries of these records have 
been described in this decision at intervals out of 
convenience due to the fact that they were evidently 
misfiled/misplaced, the Board emphasizes that all of these 
records are duplicates for purposes of this appeal.

In addition to the above, the appellant's submission of 
records received by the RO in February 1991 included copies 
of the appellant's Navy personnel records, including a DD 
Form 1289 that showed he was ordered to bed rest to elevate 
his foot while he was at the Naval Dispensary in Norfolk, 
Virginia in October 1969; a copy of the letter his parent-
guardian wrote in November 1969; copies of records associated 
with his appeal to the Navy's Central Physical Evaluation 
Board; copies of the lay statements authored by Messrs. 
[redacted] and [redacted]; a copy of his "Report of Medical 
History" prepared in connection with his enlistment in the 
Navy in May 1968 (noted a history of his brother being 
"killed" at age 5); and, a copy of the statement Dr. Horner 
wrote on June 18, 1973.

The appellant perfected his appeal as to the direct-service 
connection left shoulder claim by the filing of a VA Form 9 
substantive appeal in October 1991.  He again reiterated many 
of the same arguments previously raised and submitted, but he 
added that although the dislocating problems he had with his 
left shoulder may have been developing prior to service, he 
pointed to two specific injuries sustained in service which 
he believed supported an award of service connection on 
either a direct or aggravation basis.  One injury was his 
fall on the flight deck where he sustained a left ankle 
sprain in July 1969.  He claimed that he injured his left 
shoulder as well in connection with that fall.  The other 
injury was his account of the fall down a ladder shaft.

In December 1991, the RO received additional evidence in 
support of the appellant's claim.  Specifically, the evidence 
included a "Statement in Support of Claim," VA Form 21-
4138, signed by the appellant on November 11, 1991, which 
addressed primarily his section 1151 claims.  In support of 
his arguments, he submitted copies of medical texts and 
studies pertaining to surgical procedures used to correct 
shoulder instability, to include the Bankart and the Bristow 
procedures.  In addition, the appellant submitted copies of 
the operative reports from his 1973 shoulder scar excision 
surgery performed by Dr. McFaddin and from his March 1983 
shoulder surgery performed at the Johnson City Medical Center 
Hospital by Dr. H. J. Williams, M.D.

The aforementioned operative reports showed that the March 
1983 surgery involved a Bristow procedure that noted that one 
of the screws from the 1971 surgery which was anchored to the 
bone had backed out slightly enough so that the margin of the 
screw in its intra-articular location was encroaching on the 
head as it tended to glide over the rim.  It was further 
noted that the other screw was loose within the soft tissue 
and that screw was removed first.  Also, it was noted that 
this screw seemed to be an obstructing force.  In addition, 
the report went on to note that one of the screws was 
protruding posteriorly and it was a source of irritation and 
crepitation in the posterior part of the joint.  After both 
screws were removed, Dr. Williams placed the shoulder through 
a full range of motion and felt that there was some anterior 
tendency for the shoulder to sublux.  At that point, Dr. 
Williams performed the Bristow procedure and noted that there 
were no complications.

Additional development undertaken by the RO to process the 
appellant's section 1151 claims included referring the case 
to a VA examiner in January 1992 for an opinion request.  An 
x-ray examination of the appellant's left shoulder conducted 
on February 6, 1992, in conjunction with the opinion request 
disclosed the presence of an orthopedic screw through the 
neck of the glenoid fossa and also some spurring in the 
vicinity of the screw from the inferior lip, which was viewed 
as likely degenerative in nature.  The joint space, however, 
appeared preserved except for some narrowing on its inferior 
margin.  The examiner also noted some minimal sclerosis in 
the area as well which would be compatible with some 
degenerative changes.  Based on this x-ray report and a 
review of the evidence in the claims file, the examiner 
opined that while the 1971 surgery was not successful, in 
that the appellant continued to have recurrent dislocation, 
it was appropriate.

On October 28, 1992, the appellant testified before the 
undersigned Member of the Board at a hearing held in 
Washington, DC.  With respect to his left shoulder, the 
appellant testified that he performed strenuous manual labor 
working on his father's farm prior to service as well as in 
working at a bomb fin making plant for the Navy for about 
four months prior to his enlistment in the Navy in October 
1968.  He again related the history of breaking his collar 
bone in 1964 and he stated that he had no dislocation of his 
left shoulder prior to service.  He went on to testify that 
he started having problems with his left shoulder during 
basic training.  He stated that he saw a military physician 
for his complaints at which time he told the doctor that he 
first hurt his shoulder two or three years before service and 
he reported popping-out symptoms.  The appellant testified 
that at that time he relayed his medical history by mistake 
by associating his collar bone fracture injury with his 
shoulder problems.

Next, he testified that his first injury in service was his 
fall down the ladder shaft where he struck his head and left 
shoulder.  He stated that blood was running down his face as 
he stumbled through a chow line in the mess hall.  At that 
point, he collapsed and some guys put him in a wire basket 
and took him to the sick bay.  His left shoulder was hurting 
as well and it turned blue, but he stated that the medical 
records only showed that they sutured his head gash wound.  
The appellant then stated that from the day of his injury, 
the left shoulder continued to pop out of joint and cause 
severe pain.  His next injury occurred in 1969 as well when 
he dived out of the way of a jet and fell into a hole on the 
flight deck.  The appellant stated that he busted his ankle 
as result, but he also claimed to have re-injured his left 
shoulder in the fall.  However, the left shoulder problems 
were again not recorded on treatment reports according to the 
appellant.  Thereafter, he continued to have problems with 
the left shoulder and as a result, he was sent to the 
Portsmouth facility for further evaluation.  At Portsmouth, 
the appellant stated that the doctors recommended that he 
give his shoulder a year or so to get better and so no 
surgery was performed.  The appellant testified that 
following service, he sought treatment with the VA because 
the shoulder was continuing to give him problems.  He stated 
that the VA performed surgery in 1971 and although it seemed 
okay for a while, the shoulder started popping out of place 
again and he could no longer work.  He further testified that 
in 1982 he had an on-the-job injury attempting to move a 
crate that resulted in another dislocation of his left 
shoulder with numbing down into his arm.  With respect to 
hearing loss and tinnitus, the appellant testified that he 
started having problems with these conditions in service as a 
result of working in close proximity to jets taking off and 
landing on the carrier.

In November 1992, the appellant submitted additional evidence 
to the Board in the form an August 1990 audiogram conducted 
by the Ear, Nose, and Throat Clinic of Bristol.  His chief 
complaint was tinnitus (described as birds singing, worse at 
night) and hearing loss.  The audiologist's physical 
examination was described as within normal limits.  The 
results of the audiogram were deemed to be consistent with 
noise-induced bilateral hearing loss.  His medical history 
was recorded as significant for flight deck duties aboard a 
carrier and exposure to jet aircraft noise.  The audiogram 
report showed hearing thresholds of 45 to 60 decibels range 
at 4000 H for each ear, but his speech discrimination scores 
were 100 percent for each ear.

In May 1993, the Board remanded the appellant's case for 
additional development.  The requested development was fully 
accomplished by the RO and will be detailed below in the 
order the evidence was received.

In June 1993, the RO received copies of additional VA 
outpatient reports from the Mountain Home-VAMC dated through 
June 1993.  These reports consisted almost entirely of 
duplicates of records previously considered by the RO and the 
Board.  The reports that were "new" disclosed that 
following an outpatient visit in 1989, the appellant was next 
seen at the Mountain Home facility on June 1, 1993, for 
complaints of intermittent, midsternal chest pain, present 
for the past several years but becoming worse.

In July 1993, the RO received a VA Form 21-4138 signed by the 
appellant on July 3, 1993.  The appellant responded to a 
development inquiry initiated at the Board's request for more 
information concerning his 1973 car accident and his 1975 
work injury.  Regarding the latter, he stated that in the 
fall of 1975, he was sitting on a work bench when he leaned 
back against his chair to grab a circuit card at which point 
his left shoulder separated.  He experienced intense pain as 
a result, and was taken to a hospital.  He further stated 
that he was thereupon referred to an orthopedic doctor (Dr. 
Williams) for evaluation.  He added that he had a short 
period of dizziness/partial unconsciousness as a result of 
the fall, but no significant head injury.  With regard to the 
1973 car accident, he stated that the Bristol, TN, police 
department had no records concerning the accident as they 
only kept records going back three years.  He filled out a 
"Report of Accidental Injury" in which he stated that he 
sustained pulled muscles in the lower back.  In response to 
another development inquiry, his Form 21-4138 of July 1993 
indicated that the psychiatric examination report of Dr. 
Bockian was already in the claims file.

In August 1993, the RO received evidence obtained as a result 
of development inquiries sent to the SSA, the Bristol, TN, 
police department, the Bristol Memorial Hospital, and from 
Drs. Hensen, Williams, Hester and McFaddin.

The response received from Dr. Hensen regarding any medical 
records dating from the 1980s consisted of a single-page, 
handwritten statement signed by Dr. Hensen on August 6, 1993.  
Dr. Hensen simply noted that the appellant had the following 
problems: ventral hernia; chronic back pain/severe 
degenerative joint disease; screw fixation, left shoulder, 
with degenerative joint disease, left shoulder, and shoulder 
subluxation and biceps tendon transfer; diabetes mellitus; 
and, hypertension.

The reply from Dr. Williams consisted of office visit 
treatment summary reports dating from 1977 to 1992.  Office 
visit reports dated September 1977, indicated that the 
appellant had been involved in an accident at work in August 
1977, at which time he sustained a back injury.  His history 
at that time was noted to be significant for a prior back 
injury sustained in a July 1973 car accident, whereupon he 
went back to work after several months and hurt his upper 
back, developing pleurisy and pericarditis in the process.  
These conditions apparently went away, although the source of 
the infectious process was unknown.  Examination in September 
1977 disclosed that the appellant had muscle spasm and 
limited range of motion in his back.  Additional office 
visits through the end of September 1977 for heat treatment 
were provided.  The appellant was apparently next seen by Dr. 
Williams in March 1983 in connection with the above-detailed 
Bristow procedure for his left shoulder.  Office visit 
reports dating through July 1983 indicated that his left 
shoulder was doing well postoperatively.  Reports dated in 
1984 and 1987 indicated that he was seen for rechecks of his 
left shoulder and back conditions.  The appellant did not see 
Dr. Williams again until June 1992 when he came in 
complaining of low back pain with radicular symptoms into his 
right leg.  He was seen on three occasions in June 1992 for 
these complaints, during which times Dr. Williams noted that 
the appellant was extremely depressed over the general state 
of his health.

Medical records received from the aforementioned Dr. Hester 
consisted of two orthopedic consultations for his low back 
condition, the first being in August 1974 following the July 
1973 car accident, and the second in June 1992.  The report 
dated in June 1992 indicated that he had a history of ventral 
hernia repair x3, a history of three operations for his left 
shoulder, an operation for removal of a Meckel's 
diverticulum.  In a section labeled "SERIOUS ACCIDENTS," it 
was noted that the appellant had a fall in the Navy in 1969 
in which he injured his left shoulder, neck and head.  It 
also was noted that he had a car accident in 1972 and an on-
the-job accident in 1982 in which he pulled his shoulder and 
hernia and hurt his back.  Dr. Hester's report denoted a 
diagnosis of severe degenerative joint disease of the back 
with radicular symptoms.  Lastly, Dr. Hester's records 
reflect that he saw the appellant on August 2, 1993, at which 
time he noted only that he referred him to a VA hospital.

The medical records received from Dr. McFaddin's office, 
Bristol Orthopedic Association, P.C., dated from 1985 to 
1993, reflect treatment by the aforementioned Dr. Chandler.  
When seen in September 1985, the appellant's chief complaint 
was a backache related to several injuries and accidents in 
the past, including the 1973 car accident.  In the section 
for previous medical illnesses, Dr. Chandler noted that the 
appellant had a prior history of several injuries, to include 
injuries to his left shoulder and head following a fall 
aboard an aircraft carrier.  His report also stated that the 
appellant had recurrent hernia and injuries to his left 
shoulder and back while working at the telephone company.  
The diagnostic impression was mechanical pain secondary to 
spondylosis, lumbar spine.  Reports of Dr. Chandler show 
additional treatment between 1988 and 1993 for multiple 
musculoskeletal pain complaints, including in his left 
shoulder.

The response from the Bristol police department corroborated 
the appellant's account reported in July 1993 to the extent 
that the department confirmed that it did not keep accident 
reports longer than three years.

Records received from the Bristol Memorial Hospital consisted 
of the discharge summary from the appellant's October 1975 
hospitalization for resolving pleural pericarditis, weight 
loss of unknown etiology and chronic fatigue.  The report 
reflects that he was admitted with complaints of chest pain 
of approximately two to three week's duration.  His medical 
history was noted to be significant for a stomach tumor at 
age 7 or 8 and lung collapse in 1958.  It also was noted by 
history that he had a pin in his left shoulder with 
dislocation occurring twice while he was in the military.  He 
complained of occasional blurred vision and occasional 
headache, but his physical examination disclosed no abnormal 
findings.  During his stay, further evaluations included an 
x-ray of the left shoulder which showed metallic screws in 
the inferior portion of the left shoulder with no other 
abnormalities.  In addition, he was seen by the 
aforementioned Dr. Bockian for psychiatric evaluation during 
this period of hospitalization, the report of which is 
detailed above.  Final diagnoses at discharge were pleurisy; 
pericarditis; streptococcal pharyngitis; chronic fatigue; 
and, acute schizophrenic reaction with paranoid and 
pseudoneurotic features.

The medical records received from the SSA disclosed that the 
appellant incurred disability within the meaning of the SSA 
Act in May 1982 for ventral wall hernias and for dysthymic 
disorder.  Most of the records consisted of duplicates of VA 
and private medical records previously considered by the RO 
and the Board; however, the records submitted included 
physical and mental examinations conducted in 1987 and 1988 
for purposes of his claim for disability benefits through the 
SSA.  A physical examination by a Dr. K. W. Konrad, Ph.D., 
M.D., conducted in December 1987 resulted in diagnoses of 
post traumatic degenerative changes, left shoulder, with 
limited range of motion and sensory and motor deficits of 
left arm and hand; and, degenerative disc disease at L5-S1.  
Of note is that Dr. Konrad's examination also found that the 
appellant had good hearing acuity for fairly loud 
conversational speech at a distance of six feet.

The RO received additional outpatient reports from the 
Mountain Home-VAMC; however, these reports are not relevant 
to the matters under consideration (an EKG study conducted in 
November 1993 that disclosed a normal sinus rhythm and normal 
EKG, and an upper gastrointestinal consultation in December 
1993 for the appellant's complaints of heartburn).

In addition to the above-cited evidentiary development, the 
RO was instructed by the Board's remand of May 1993 to have 
the appellant examined for compensation purposes, and in 
November and December 1993, he underwent a battery of medical 
examinations by VA.  To the extent that these reports are 
factually and/or medically germane to the left shoulder and 
hearing loss issues on appeal, they included examinations for 
the ears/hearing loss and for mental disorders/PTSD.  A 
joints examination was referred to a fee-basis examiner, the 
details of which will be set forth below in this decision.

The VA audio examination was conducted on November 8, 1993.  
The appellant reported a history of hearing difficulty and 
constant, bilateral tinnitus since 1969.  He gave a history 
of noise exposure from jet aircraft, explosions and 
occasional firearms target practice while serving in the 
Navy.  Puretone frequency thresholds averaged 18 decibels for 
the right ear, 34 decibels for the left ear.  The frequencies 
for the right ear for the 500, 1000, 2000, 3000 and 4000 H 
range were, respectively, 5, 0, 5, 35, and 30.  The left ear 
frequencies in the same H sequence were 5, 5, 20, 55, and 55.  
His speech recognition scores were 96 percent for the right 
ear and 92 percent for the left ear.  Regarding tinnitus, the 
audiologist simply referred to the appellant's reported 
medical history.  Based on these findings, the audiologist 
concluded that no additional medical follow-up was required.  
A summary of the test results were therefore as follows:

Hearing is within normal limits for 250 
through 2,000 hz [H] and again at 8,000 
hz bilaterally.  For the frequencies of 
3,000 through 6,000 hz there is a 
bilateral sensorineural hearing loss 
which is mild in the right ear and 
moderate in the left ear.  Word 
recognition is good bilaterally.  Both 
tympanograms are within normal limits.

The VA mental disorders and PTSD examinations were conducted 
on November 9, 1993.  Pertinent to the left shoulder 
disorder, the reports of these examinations reflect that the 
appellant reported feeling very bad and guilty about not 
going to Vietnam due to his unexpected hospitalization in 
1969 and subsequent unfitness discharge for the left shoulder 
problem.  In addition, the appellant relayed a history of 
nightmares and poor sleep due to his account of the beating 
incident in the Navy.  He reported that he witnessed the 
beating of a fellow serviceman and was injured trying to 
rescue him from the assailants to the extent that he was 
"bleeding badly."  He added that he was later chased by 
someone on the ship who did not want him to testify against 
the assailants and as a result, he fell down a flight of 
stairs and hurt his left shoulder.

On November 23, 1993, the appellant was seen by Dr. C. J. 
Johnson, M.D., of the Watauga Orthopaedics firm in Johnson 
City, TN, for a fee-basis orthopedic examination.  At that 
time he gave a history of having been injured in the spring 
of 1969 when he was attacked by a couple of men and thrown 
down a ladder shaft head first landing on his head and 
against his left shoulder.  He had a head laceration sutured 
and spent some time in the sick bay.  Subsequently, he 
returned to duty and sustained another injury in the summer 
of 1969 when he fell into a control hatch trying to avoid a 
jet and injured his left ankle and shoulder.  He reported 
that he was hospitalized for a couple of months following 
this incident.  In the years after service, he reported a 
history of multiple surgeries for his left shoulder - the 
1971 Bankart procedure, the surgery by a private physician in 
1973 for excision of scar tissue, and the 1983 Bristow 
procedure.  On examination, Dr. Johnson found sensitivity in 
the left shoulder anteriorly and posteriorly.  In addition, 
the appellant complained of pain when attempting to elevate 
his arm.  X-rays showed a screw in the inferior aspect of the 
glenoid.  Dr. Johnson noted that the screw was a malleolar 
screw that appeared to have a halo around it consistent with 
some loosening.  There were no arthritic changes seen on the 
x-ray.  Based on these findings, he diagnosed recurrent 
subluxation, left shoulder, status post surgical repair times 
two.  Regarding the appellant's history, Dr. Johnson offered 
the following:

The patient's history of injury reported 
in 1969 cannot be fully substantiated by 
the records furnished to me.  There were 
no medical records from the U.S.S. [sic] 
America of when the injury occurred.  
There is a report of two of his 
colleagues, fellow servicemen, in 1973, 
which would substantiate his statements.  
Unfortunately, they are four years after 
the fact.  He denies any prior problems 
with his shoulder prior to the injury.  
However, the medical records of previous 
examining physicians in the service puts 
this in question.  Unfortunately, it is 
the patient's word against the records of 
the military.  One would hope that the 
medical records are carefully kept, but 
that probably is not always the case.

Additional development actions were taken by the RO in 1994.  
In May 1994, in response to a request for same, the RO 
received an addendum report from the VA examiner who 
conducted the audio examination on November 15, 1993:

In response to the [Board's] remand, the 
information regarding the date of onset 
of [the appellant's] hearing problem and 
his tinnitus is in the original report.  
He stated that he first noticed hearing 
difficulty and bilateral tinnitus in 1969 
while in service.  Results of the 
audiological evaluation indicated 
evidence of bilateral acoustic trauma.  
That is, hearing is within normal limits 
for the 250-2000 [H] and again at 8000 
[H] with a sensorineural hearing loss at 
3000-6000 [H] bilaterally.

Thereafter, the appellant underwent a VA joints examination 
on May 19, 1994, for further evaluation of his left shoulder.  
His medical history, complaints, and clinical findings 
regarding his left shoulder were essentially unchanged as 
previously reported in prior examinations.  X-rays taken in 
connection with this examination showed that the head of the 
humerus was correctly within the glenoid fossa.  There was 
one cancellous bone screw present which was used to 
internally fix the tip of the corticoid and attached muscles 
which were transferred in the Bristow procedure.  In 
addition, x-rays showed some sclerosis of the bone and 
evidence of osteoarthritic change developing in the joint.  
On the basis of these findings, together with review of the 
appellant's medical history, the VA joints examiner offered 
the following medical opinion:

It is evident that the result of the 
Bankart procedure was unsuccessful.  
However, there is no indication that the 
shoulder was made worse by the surgery.  
The Bristow procedure also has not 
produced satisfactory results.

The patient denies that he ever had any 
prior problems with the left shoulder 
before the accident [in service].  
Whether this is, in fact, the case, in 
not clear.  I am of the opinion that his 
main problem now is due to continuing 
instability associated with degenerative 
arthritis in the joint.

Also, in June 1994, the RO received the appellant's Navy 
personnel file from the NPRC.  These records included a copy 
of his DD Form 214N regarding his service dates and type of 
discharge and other administrative documents none of which 
contained any additional information regarding the 
circumstances of his military service or medical conditions 
treated and/or diagnosed during such service.

In August 1994, the RO received a statement from the 
appellant regarding his back injury sustained in August 1977.  
To verify the injury, he submitted an admission notice from 
the Bristol Memorial Hospital that indicated treatment for a 
thoracic spine strain as a result of falling off a chair at 
work on August 9th.  In addition, he submitted previously 
considered copies of medical reports dated in 1977-83 from 
Dr. Williams.  In his statement, the appellant indicated that 
the reference to the old wedged vertebrae in Dr. Williams' 
report of September 12, 1977, was in fact injured when he was 
thrown down the ladder hatch during service.

In September 1994, the RO received a statement from the 
appellant's former employer, United Telephone, dated August 
24, 1994, which indicated that a review of the appellant's 
permanent personnel record by that company's Safety 
Coordinator disclosed no evidence that a workers' 
compensation claim was filed on his behalf in 1977.

In addition to the above, the RO received true copies of all 
the appellant's available medical records from the Mountain 
Home-VAMC in February 1995.  These records were dated from 
1971 through 1994, and consisted mainly of duplicates of 
records previously considered.  However, reports that were 
"new" included a pre-surgery "Medical Certificate and 
History" statement dated August 27, 1971, which noted the 
appellant's complaints of recurrent left shoulder dislocation 
averaging once per week that he reported started in service.  
The appellant reported that he had fallen off a ladder during 
service and "split his head open" and his left shoulder 
started to give him problems.  Additional records pertaining 
to the surgery indicated that the Bankart procedure was 
discussed with the appellant on September 9, 1971, at which 
time he signed an informed consent to have the procedure done 
on his left shoulder.

The other "new" reports included follow-up treatment 
summaries from his September 1971 Bankart shoulder surgery 
dated through December 1971.  These reports fill in the gap 
of time to the June 1972 follow-up report that was previously 
considered.  A report dated September 13, 1971, indicated 
that the appellant was discharged with instruction to return 
on September 20th to have his sutures removed.  The report 
for that date reflects that the appellant returned and had 
his sutures taken out.  A report dated October 27, 1971, 
indicated that the appellant had had no recurrence of 
dislocation since the surgery.  He was advised to return to 
school.  X-rays showed good support of one screw and fair 
support for the other.  He was told to hold down on abduction 
and external rotation for another six weeks.  The report 
dated December 12, 1971, indicated that an x-ray showed the 
two screws remaining in the same position.  There was no 
history of recurrent dislocation, but he was still having 
moderate discomfort.

Finally, of record is the transcript of the appellant's 
hearing before the undersigned Member of the Board that 
occurred on December 1, 1998, at the Board's headquarters in 
Washington, DC.  The appellant's testimony with regard to the 
issues now in appellate status is essentially reflected above 
by and through his prior hearing testimony and many 
statements of record.

II.  Analysis

New and Material Evidence to Reopen Claim of Service 
Connection for Left Shoulder Dislocation

Governing statutory and regulatory provisions stipulate that 
unappealed decisions of the RO and decisions of the Board are 
final, and may be reopened only upon the receipt of 
additional evidence that, under the applicable statutory and 
regulatory provisions, is both new and material.  See 
38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 1991); 38 C.F.R. 
§§ 3.104(a), 3.156, 20.1100-06 (1999).

New and material evidence means evidence not previously 
submitted 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 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); see 
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The Court has 
held that materiality contemplates evidence that "tend[s] to 
prove the merits of the claim as to each essential element 
that was a specified basis for that last final disallowance 
of the claim."  Evans v. Brown, 9 Vet. App. 273, 284 (1996).

Following issuance of the Hodge ruling, the Court articulated 
a three-step analysis for adjudicating claims based on new 
and material evidence: VA must first determine whether new 
and material evidence has been presented under 38 C.F.R. 
§ 3.156(a); second, if new and material evidence has been 
presented, immediately upon reopening VA must determine 
whether, based upon all the evidence and presuming its 
credibility, the claim as reopened is well grounded pursuant 
to 38 U.S.C. § 5107(a); and third, if the claim is well 
grounded, VA may evaluate the merits after ensuring the duty 
to assist under 38 U.S.C. § 5107(b) has been fulfilled.  See 
Elkins v. West, 12 Vet. App. 209 (1999) (en banc) and Winters 
v. West, 12 Vet. App. 203 (1999) (en banc).  However, the 
Court's decision in Winters was recently vacated by the U. S. 
Court of Appeals for the Federal Circuit (the Federal 
Circuit) in July 2000 on the grounds that the Court exceeded 
its jurisdiction in that case by addressing de novo the issue 
of whether the claim was well grounded (the second step in 
the three-step analysis articulated in Elkins).  Winters v. 
Gober, No. 99-7108 (Fed. Cir. July 26, 2000).  Rather than 
remand the case to the Board, the Court in Winters simply 
applied the new rules from Elkins without notice to the 
appellant, and hence, he was deprived of the opportunity to 
present evidence on the well grounded claim issue before the 
original triers of fact, i.e., the RO and the Board.  Id.  
The Federal Circuit held that the Court's jurisdiction was 
limited only to the issue before it, whether new and material 
evidence had been submitted to reopen the claim, and 
therefore, in light of the intervening change in the law 
resulting from the Hodge and Elkins rulings, the Court should 
have remanded the claim to the Board for reconsideration in 
light of Hodge.  Id. (citing Maggitt v. West, 202 F.3d 1370 
(Fed. Cir. 2000)).

The Federal Circuit in Winters did not, however, address a 
challenge to the three-step analysis for reopening claims 
established in Elkins in light of its holding that the Court 
had to remand the case back to the Board for a Hodge-new and 
material reconsideration.  Id.  Hence, the Elkins-three-step 
analysis for reopening claims based on new and material 
evidence remains good law that the Board is bound to apply.  
See Tobler v. Derwinski, 2 Vet. App. 8 (1991) (precedent 
decisions of courts of superior jurisdiction to Board must be 
given full force and effect immediately, even if VA appeals 
the decision).

Accordingly, as this case remains in appellate status, the 
Board will now consider whether new and material evidence has 
been submitted in accord with the holdings in Hodge and 
Elkins.  No prejudice to the appellant is exercised by the 
Board's appellate disposition herein for two reasons: (1) the 
statement and supplemental statements of the case issued in 
connection with this appeal provided notice of the applicable 
law and regulations pertaining to new and material evidence, 
specifically 38 C.F.R. § 3.156, and, (2) the Board's review 
of the claim under the more flexible Hodge standard accords 
the appellant a less stringent "new and material" evidence 
threshold to overcome.  Cf. Bernard v. Brown, 4 Vet. App. 384 
(1993); see also Fossie v. West, 12 Vet. App. 1 (1998).

Service connection for residuals of left shoulder dislocation 
was previously denied by the Board in a decision dated in May 
1987.  This decision is final.  38 U.S.C.A. § 7104(b) (West 
1991).

The Board will not reopen the appellant's claim of service 
connection for residuals of left shoulder dislocation.  When 
read together with the appellant's contentions, the Board 
concludes that the new evidence submitted or associated with 
the record since the May 1987 Board decision is not so 
significant that it must be considered in order to fairly 
decide the merits of the claim.

For the reasons set forth below, the Board finds that all of 
the "new" evidence, i.e., lay, medical and service 
department records, which is not duplicative of records 
previously before the Board in May 1987 is essentially 
cumulative of the evidence previously considered because it 
does not pass the test of materiality as to the underlying 
issue, i.e., evidence which supports, or tends to support, 
the appellant's contention that an injury to his left 
shoulder resulting in disability was incurred in or 
aggravated during his one year, two months, and nine days of 
active duty service in the Navy in 1968-69.

The Board will first analyze the evidence that was before the 
Board in May 1987.  As detailed above, the history of this 
case prior to time to the filing of the present claim and 
appeal reflects that between 1969 and 1986, the appellant 
filed seven claims seeking entitlement to VA disability 
compensation or pension benefits.  Five of the seven claims 
sought disability compensation benefits for residuals of left 
shoulder dislocation and/or subluxation.  The other two 
claims were filed for VA pension benefits.

In his first claim, filed in December 1969, the appellant 
stated that he hurt his left shoulder in 1967, prior to 
service, and that "[i]t came out about 3 times prior to 
entering service."  However, he also stated that he had 
chronic dislocation problems with his left shoulder during 
service ("pops out very easily") and that he received 
treatment in service for same on two occasions, in November 
1968 and March 1969.

Service medical records reviewed by the RO essentially 
corroborated the statements made by the appellant on his 
original claim.  Although the enlistment examination of May 
1968 did not denote a problem with the left shoulder (only a 
history of an old fractured left clavicle, described as 
resulting in no abnormality at the time of the examination 
("Ok now"), was noted), service medical records showed 
treatment in October 1968 for pain caused by a dislocated 
left shoulder.  The time frame of that treatment report would 
have corresponded to the appellant's basic training period.  
No further treatment was shown until September 1969 when a 
sick bay report from the USS AMERICA noted by way of history 
that the appellant was experiencing recurrent dislocation of 
his left shoulder.  Although he was not treated at that time, 
a sick bay report dated in October 1969 indicated that he 
dislocated his left shoulder two weeks ago.  Additionally, it 
was reported for the first time in October 1969 that he had a 
history of dislocating his left shoulder two years ago, or in 
1967, a time frame which corresponded to the year he reported 
on his original claim as the date he sustained the 
dislocation injury prior to service.

A similar history was reported by the appellant at the time 
of his orthopedic examination aboard the USS AMERICA in 
October 1969.  At that time, he related that the dislocation 
occurred when a horse fell on him two years ago (which also 
placed the date of the pre-service injury in 1967).  Later, 
when he was evaluated at the Navy's Portsmouth hospital in 
November-December 1969, the appellant reported an equivalent 
medical history, stating that he suffered his initial 
dislocation when a horse fell on him in November 1966.  
Although the dates are not exact, it is clear that the 
shoulder dislocation injury was a separate and distinct 
injury from the October 1964 collar bone fracture that was 
treated by Dr. Horner.  Nevertheless, and regardless of what 
the appellant thought he mistakenly told the military doctors 
at admission about his pre-service history, the facts before 
the Board in May 1987 indicated that a left shoulder 
dislocation occurred prior to service.  Examination at 
Portsmouth in November 1969 revealed clinical subluxation and 
grating with full range of motion.  As a result, the 
appellant was administratively discharged from further 
military service with what a Navy Medical Evaluation Board 
concluded was a pre-existing condition of the left shoulder 
manifested by recurrent subluxation that was not shown to 
have been aggravated therein.

The only other evidence reviewed in connection with the 
appellant's original claim was Dr. Horner's prescription slip 
dated December 22, 1969, that noted that he had chronic 
subluxation of the left shoulder.

When he filed his second claim in September 1971, the 
appellant stated that he fell down a ladder during service 
and injured his left shoulder.  He claimed no treatment for 
that injury, but added that his shoulder continued to give 
him problems following the ladder fall injury and that such 
problems eventually led to his hospitalization at the 
Portsmouth facility in November 1969.  Medical evidence 
associated with the claims file in connection with the second 
claim consisted of an operative report of the 1971 Bankart 
procedure performed on September 8, 1971, at the Mountain 
Home-VAH and a follow-up report for same dated June 30, 1972.  
Because those records did not shed any light on the nature 
and circumstances of the appellant's military service and any 
problems he had therein with his left shoulder, the RO did 
not reopen the claim.

In April 1973, the appellant's filed his third claim seeking 
disability compensation benefits for residuals of left 
shoulder dislocation.  His claim was again denied by the RO 
on the basis of new and material evidence and that decision 
was upheld by the Board on February 14, 1975.  In his 
pleadings, the appellant continued to maintain that he 
injured his left shoulder falling down a ladder hatch aboard 
the USS AMERICA in 1969.  In support of his claim, he 
submitted statements from two former shipmates aboard the 
AMERICA, Messrs. [redacted] and [redacted], each of whom 
essentially corroborated the appellant's story of the ladder 
fall and left shoulder injury, and a statement dated in June 
1973 from Dr. Horner, his family's doctor, which indicated 
that he was treated by Dr. Horner for a left clavicle 
fracture in October 1964 but not for any 
subluxation/dislocation injury to his left shoulder.  Later 
during the appeals period, treatment reports of Dr. Horner 
dated before and after service verified treatment for the 
left clavicle fracture in October 1964, but showed no 
treatment for a dislocation or subluxation injury to the 
appellant's left shoulder.

In addition to the above, the evidence before by the Board in 
May 1987 included the transcript of the hearing held at the 
Board in November 1973.  At that hearing, the appellant 
disclosed for the first time that in addition to the 
fractured left clavicle injury as a fifteen-year old freshman 
in high school in October 1964, he injured his left shoulder 
playing basketball during his junior year of high school.  
His junior year of high school would have been approximately 
1967, the same year that he reported in service and in 
connection with his original claim as the date he sustained 
an injury to his left shoulder.  He testified that he pulled 
a muscle going up for a rebound and thought he dislocated his 
left shoulder.  However, he testified that he received no 
treatment for the injury other than rubbing it himself, and 
that after a day or two, he had no further complaints or 
symptoms.  Further, the appellant testified that he when he 
enlisted in the Navy, he told the doctors that he had a 
problem with his left shoulder every once in a while when he 
did strenuous work or lifted something the wrong way.

Regarding his medical history, the appellant testified in 
1973 that he had mistakenly reported on his original claim 
that he dislocated his left shoulder three times prior to 
service.  He testified that what he meant to tell the 
military doctors was that he thought he dislocated the left 
shoulder when in his view he actually just strained his 
muscles in the shoulder joint and incurred pain as a result.  
He testified that the military doctors incorrectly assumed 
that the 1964 left clavicle fracture represented a pre-
existing condition of the left shoulder.  The appellant 
emphasized through his testimony that the left clavicle 
fracture injury of 1964 had nothing to do with the strain 
injury he suffered in approximately 1967 playing basketball.  
Moreover, as he stated in his pleadings, the appellant 
testified that he injured the left shoulder in the 1969 
ladder hatch fall aboard the USS AMERICA and thereafter, 
sustained residual disability manifested by recurrent 
subluxation and/or dislocation.  He admitted that there was 
no official investigation of his ladder fall but that he told 
his division commander about it.

Compared with his prior pleadings, the appellant's hearing 
testimony of November 1973 offered an altogether different 
account, or at the very least, a different interpretation of 
the relevant facts and circumstances of his left shoulder 
injuries prior to and during service.  However, the Board did 
find persuasive the parts of his hearing testimony which 
purported to support his contentions that he did not sustain 
a dislocated left shoulder prior to service.  As indicated 
above, his original claim which he prepared while he was 
still on active duty in the Navy stated in unambiguous 
language that he injured his left shoulder in 1967 and that 
it came out of joint about three times prior to service.  
Moreover, the medical history provided by the appellant in 
service corroborated his original account of the left 
shoulder dislocation in 1967.  Further, the additional 
evidence obtained in connection with subsequent claims and 
appeals that was before the Board when it rendered its 
decision in May 1987 only served to enhance the credibility 
of the appellant's original story, while at same time, it 
impeached his hearing testimony of November 1973 and 
subsequent pleadings, testimony, etc, where the story 
differed from his original version.

Specifically, the evidence considered by the Board in May 
1987 included a letter written by the appellant's guardian-
parent to the Navy in November 1969.  That letter was not 
associated with the claims file until the early 1980s 
following the RO's receipt of documents connected to the 
appellant's appeal to the Navy's Central Physical Evaluation 
Board.  The guardian's letter also stated in clear and 
unambiguous language that his parents were aware that he had 
a left shoulder dislocation problem prior to service.  When 
their letter was read together with the appellant's testimony 
of November 1973 regarding the basketball injury in his 
junior year of high school, the medical history he provided 
during service, and his account of the 1967 dislocation 
injury provided at the time he filed his original claim for 
VA disability benefits, the evidentiary record before the 
Board in May 1987 clearly indicated that the appellant's 
original account of sustaining a dislocated left shoulder 
prior to service in 1967 was the more accurate and credible 
version of the facts.

Additionally, although the appellant continued to have 
recurrent dislocation of his left shoulder in service, to the 
extent that his pleadings differed from the factual record, 
his account of his left shoulder injuries during service was 
in effect unsubstantiated when the Board issued its decision 
in May 1987.  As detailed above, service medical records 
verified treatment for complaints of pain associated with a 
shoulder dislocation in October 1968 and again in September 
or October 1969.  There was no evidence that he sustained an 
acute-type injury to his left shoulder in a fall down a 
ladder hatch aboard the USS AMERICA in 1969 or in any other 
acute-type injury in service.  Extensive development efforts 
undertaken by the RO and the Board in connection with the 
prior claims and appeals produced no additional service 
medical records to verify such an injury.  As detailed above, 
the NPRC stated on multiple occasions that no additional 
service records were available pertinent to the appellant.  
Also, all medical records associated with the appellant's 
hospitalization at the Portsmouth Naval Medical Hospital, 
specifically, summary reports, nursing and consultation 
notes, etc., were eventually obtained and considered by the 
RO and the Board in connection with prior claims and appeals.

On the basis of the above, the Board in May 1987 essentially 
found that the appellant's contentions as well as the lay 
statements of Messrs. [redacted] and [redacted] were insufficient 
by themselves to prove the occurrence of the alleged injury 
to his left shoulder sustained in a fall down a ladder hatch.  
The treatment records of Dr. Horner obviously did not alter 
the Board's finding in this regard because they only verified 
that the Dr. Horner treated the appellant for the left 
clavicle fracture in October 1964 and for other unrelated 
conditions between February 1956 and May 1968, and between 
December 1969 and June 1973.  The appellant admitted in his 
hearing testimony of November 1973 that he received no 
medical attention in connection with the basketball injury to 
his left shoulder.  Dr. Horner's treatment records for the 
period between February 1956 and May 1968 supported the 
appellant's testimony to this extent.  Hence, Dr. Horner's 
statement of June 1973 regarding the fact that the appellant 
had no pre-service history of left shoulder 
dislocation/subluxation was probative only to the extent that 
it proved that Dr. Horner did not treat the appellant for 
such an injury.  His statement did not, however, corroborate 
the appellant's contention that no such injury occurred prior 
to service.

The other evidence before the Board in May 1987 was 
essentially irrelevant to whether a disability of the left 
shoulder was incurred in or aggravated during service; 
specifically, the letters and reports from Drs. Stirman, 
Williams, Neale and Rannick, the surgical reports of the 1971 
Bankart surgery at the Mountain Home-VAH and the 1973 scar 
excision surgery at the Bristol Memorial Hospital, as well as 
the reports of the VA pension examination of November 1984, 
the discharge summary of the appellant's hospitalization at 
the Mountain Home-VAMC in February-March 1985, and SSA's 
decision of July 1985, and the Navy certificate indicating 
that the appellant was a member of the Recruit Drill Team 
were either noncontributory or cumulative of the evidence 
discussed above.

Accordingly, given the appellant's original account of the 
1967 left shoulder dislocation injury, as supported by the 
November 1969 letter of his guardian-parent, and historical 
references and treatment for such an injury provided to the 
appellant during service, the Board in May 1987 essentially 
concluded that the evidence before it supported the findings 
of the Navy's Medical Evaluation Board that a condition 
manifested by recurrent left shoulder dislocation clearly and 
unmistakably pre-existed service, thereby rebutting the 
presumption of soundness, and as shown by the history of 
recurrent dislocation prior to, during and after service, and 
ameliorated to the extent possible by treatment and 
hospitalization in service, was not aggravated therein.

As detailed above, the claim on appeal was filed by the 
appellant in February 1991.  Since the filing of this claim, 
an extensive body of evidence has been associated with the 
claims file.  The Board has carefully reviewed the file and 
identified over twenty items of evidence that pertain in some 
manner to the appellant's left shoulder disorder.

Initially, the Board notes that the number of these items 
represent duplicate copies of the appellant's service 
records, statements/reports of Dr. Horner and other private 
physicians as well as VA in/outpatient treatment reports, all 
of which were of record at the time the Board previously 
denied this claim in May 1987.  Hence, none of these records 
are "new" within the meaning of 38 C.F.R. § 3.156(a).

The evidence that was not of record at the time the Board 
denied this claim in May 1987 included Dr. Chandler's 
statement of February 5, 1991, VA outpatient reports dated 
through 1994, psychology consultation reports associated with 
the appellant's February-March 1985 hospitalization at 
Mountain Home-VAMC, Dr. Stirman's letter of June 8, 1987, a 
DD Form 1289, operative reports from his 1973 and 1983 
shoulder surgeries, an x-ray of his left shoulder done on 
February 6, 1992, statements/medical reports from Drs. 
Hensen, Williams, Hester and McFaddin, the discharge summary 
from the appellant's October 1975 hospitalization at the 
Bristol Memorial Hospital, the examination report of 
Dr. Konrad conducted in December 1987, the report of the fee-
basis orthopedic examination conducted in November 1993 by 
Dr. Johnson, the report of the VA joints examination 
conducted in May 1994, the appellant's Navy personnel file, 
and the therapy consultation reports of Mr. Pagel dated in 
1977.

Although extensive in volume, the Board nevertheless finds 
that all of this evidence is cumulative as well.  The legal 
significance of these "new" medical reports, to wit, 
evidence showing that the appellant has received additional 
treatment for his left shoulder complaints through the years, 
is negligible because the complaints and medical findings 
presented in these reports are essentially no different from 
those previously considered by the Board in May 1987.  As 
detailed above, the Board had before it medical evidence 
showing a documented history of a pre-existing left shoulder 
dislocation with treatment for same shown in service, but 
with insufficient evidence to show aggravation.  What is 
missing from the "new" records cited above is competent 
medical evidence establishing either a chronic left shoulder 
disability related to treatment or diagnosis from the 
appellant's military service or evidence supporting the 
alternative theory of entitlement via aggravation of a pre-
existing condition shown in service.

The "new" service records in the form of the DD Form 1289 
and the appellant's personnel records add nothing to the 
issue on appeal.  The DD Form 1289 only reflects that the 
appellant was ordered to bed rest to elevate his foot while 
he was at the Naval Dispensary in Norfolk, Virginia, in 
October 1969.  The report makes no mention of any problems 
with his left shoulder.  The personnel records are bereft of 
any references to medical treatment.

Regarding the medical records, the Board observes that the 
vast majority of these reports only reflect treatment for 
ongoing complaints of left shoulder pain.  To the extent that 
the appellant reported his medical history in connection with 
treatment, these reports contain essentially the same medical 
history noted in previously considered documents.  As an 
example, the discharge summary from the Bristol Memorial 
Hospital dated in October 1975 further corroborates the 
medical history reflected in the service medical records 
regarding the occurrence of two dislocation episodes during 
service.  In addition, the Board notes that Dr. Johnson's 
fee-basis orthopedic examination of November 1993 reflects 
that examiner's opinion of the dubious nature of the 
appellant's claim that he had no problems with his left 
shoulder prior to service.  Other reports again reference the 
appellant's claim that he injured his left shoulder falling 
down a ladder hatch, including some which reflect his account 
of being deliberately pushed down the hatch by unknown 
assailants.  As stated above, however, the evidence on file 
does not corroborate the appellant's claims to this extent, 
and all of these facts were well documented at the time the 
Board rendered its decision in May 1987.  Hence, for purposes 
of this appeal, all of these records are cumulative of the 
evidence of record.

In the matters raised as a result of the appeal to the Court, 
it is noted that counsel for the appellant argued in his 
brief of July 2000 that new and material evidence had been 
submitted based on Dr. Chandler's statement of February 1991.  
Specifically, it was argued that because Dr. Chandler 
diagnosed the appellant with "post traumatic arthritis" of 
the left shoulder, his statement, ". . . relates the 
shoulder injury to a traumatic event" and is therefore new 
and material because it ". . . provides a more complete 
picture of the circumstances surrounding the origin of the 
veteran's injury or disability."  The Board, however, does 
not find this argument persuasive as to the question of 
whether Dr. Chandler's report constitutes new and material 
evidence.

Dr. Chandler's report of February 1991 fails the materiality 
test when considered in light of the facts in this case and 
the basis of the prior denial of the claim.  Plainly read, 
Dr. Chandler's report reflects that he examined the 
appellant's left shoulder on January 7, 1991 and found that 
he had pain with objective manifestations of crepitance 
through range of motion of the left shoulder, and that based 
on x-rays taken in June 1988, which he interpreted as 
demonstrating a biceps tendon transfer through the head with 
loosening of internal fixation, flattening of the humeral 
head and osteophyte formation, he had "a post traumatic 
arthritis."  Without resorting to mere lay speculation, 
there is nothing further in Dr. Chandler's report that can in 
any manner be fairly read as supporting a conclusion that he 
related his diagnosis to a specific "traumatic event" or 
that can be fairly read as supporting the inference the 
appellant propounds, i.e., that the diagnosis of "post 
traumatic arthritis" relates the shoulder injury to a 
traumatic event in service and is therefore new and material 
because it ". . . provides a more complete picture of the 
circumstances surrounding the origin of the veteran's injury 
or disability."  Moreover, the report does not in any other 
context relate his left shoulder problems to service.  It is 
undisputed by the factual record in this case (which was 
known to the Board when it previously and finally denied this 
claim in May 1987) that the appellant has had a number of 
what he describes as "traumatic events" involving his left 
shoulder.  As detailed above, the credible evidence of 
record, both medical and nonmedical, documents a history of 
recurrent dislocations of the appellant's left shoulder 
occurring before, during and after service.  In addition, he 
has had no less than three surgical procedures performed on 
the shoulder in the years after service.

Hence, the Board is not convinced that a medical report 
containing a diagnosis of post traumatic arthritis made in 
1991 based on a 1988 x-ray study, without further medical 
analysis or opinion pertinent to the underlying issue of 
service connection, provides a more complete picture of the 
circumstances involving the appellant's left shoulder and the 
incidents/events of his military service in 1968-69.  As 
stated above, all of the pertinent facts regarding the pre-
service and in-service history of the appellant's left 
shoulder dislocation were before the Board in May 1987 when 
it declined to reopen the previously denied claim for this 
disability.  The "new" evidence discussed above does not 
reflect a diagnosis of arthritic changes in the left shoulder 
until many years after service, and there is nothing in 
either Dr. Chandler's report or in any other medical record 
in the file that relates the arthritic changes seen in the 
left shoulder to a "traumatic event" or any other event of 
service.  In view of these findings, the Board does not find 
Dr. Chandler's report of February 1991 to be new and 
material, i.e., so significant that it must be considered to 
fairly decide the merits of the claim, so to provide a basis 
to reopen this claim.

On the basis of above, the Board concludes that the "new" 
evidence lacks sufficient materiality to reopen the claim.  
The fact that the appellant is presently disabled due to a 
number of medical problems, including the left shoulder, is 
not a matter in dispute.  However, as stated above, what is 
lacking here is the kind of evidence needed to reopen this 
case, i.e., evidence which is relevant and probative to 
proving that the appellant has either a chronic disability 
that is related to in-service trauma or disease or, 
alternatively, a disability of the left shoulder that was 
aggravated during service.

As the "new" evidence is cumulative, the evidence 
associated with the file after the May 1987 Board decision 
does not provide a basis to reopen the claim.  See Anglin v. 
West, 203 F.3d 1343 (Fed. Cir. 2000) (evidence is not new and 
material under the first prong of the Colvin test if newly-
submitted evidence is merely cumulative of the evidence in 
the record at the time of the prior disallowance).

With respect to the above, the Board finds that the 
appellant's pleadings, statements of records, etc., to 
include his claim to reopen, notice of disagreement, 
substantive appeal, and his hearing testimony before the 
Board in October 1992 and December 1998, essentially 
reiterate his previously considered contentions with respect 
to the claimed disability of the left shoulder, and as such 
are not considered to be new.  See Reid v. Derwinski, 2 Vet. 
App. 312 (1992).  To the extent that the appellant contends 
that he has a disability that was either incurred in or 
aggravated during service, such statements, being in effect 
lay speculation on medical issues involving the presence or 
etiology of a disability, are not probative to this claim and 
therefore, are not material.  See Pollard v. Brown, 6 Vet. 
App. 11 (1993) (pursuant to Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992), lay testimony attempting to diagnose 
frostbite or arthritis in service held to not be competent 
evidence for such purpose, and thus not material); see also, 
Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of 
medical causation cannot serve as the predicate to reopen a 
claim under 38 U.S.C.A. § 5108).

VA is obligated under 38 U.S.C.A. § 5103(a) (West 1991) to 
advise a claimant of the kind of evidence needed to reopen a 
previously denied claim.  See Graves v. Brown, 8 Vet. App. 
522 (1996).  However, this obligation depends on the 
particular facts of the case and the extent to which the 
claimant has been advised of the evidence necessary to be 
submitted with a VA benefits claim.  See Robinette v. Brown, 
8 Vet. App. 69 (1995), which depends further upon VA having 
notice that relevant evidence may exist or could be obtained.  
See Franzen v. Brown, 9 Vet. App. 235 (1996) (sec. 5103(a) 
duty attaches only where there is an incomplete application 
which references other known and existing evidence that 
pertains to the claim under consideration).  However, in this 
case, there is nothing in the record which suggests the 
existence of available evidence that might provide a basis to 
reopen one this claim.  Thus, as the Secretary's obligation 
under section 5103(a) has been complied with, to the extent 
possible, further development by VA is not required at this 
time.  See Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA's 
"duty" is just what it states, a duty to assist, not a duty 
to prove a claim).

Moreover, because the claim is not reopened, the Board need 
not further consider the arguments made in the appellant's 
brief of July 2000 regarding why the claim is well grounded 
and in view thereof, how in a merits-based review of the 
claim entitlement should be granted to the benefits sought 
based on the presumption of soundness (38 U.S.C.A. § 1111) 
or, in the alternative, based on the presumption of 
aggravation (38 U.S.C.A. § 1153).  In line with the Court's 
holding in Elkins, no further analysis of the claim under the 
well grounded standards or on the merits is warranted if the 
claim is not reopened.

With respect to sections 1111 and 1153 of 38 U.S.C.A., the 
Board has considered these provisions in the context of 
whether the evidence is new and material so as to provide a 
basis to reopen the claim.  However, for the reasons 
discussed above, none of the "new" evidence provides a 
basis to show entitlement via aggravation.  On this point, it 
is important to emphasis that the Board's analysis of this 
claim and its reasons and bases for same are based on whether 
any of the evidence submitted in connection with this appeal 
is new and material under 38 C.F.R. § 3.156 (1999).  In this 
regard, the Board has been determined that the "new" 
evidence is cumulative and redundant in nature, i.e., while 
it shows additional treatment for the left shoulder in the 
post service period, it does not otherwise provide a basis 
for drawing any findings or conclusions specific to the claim 
- evidence tending to establish that a disability of the left 
shoulder was incurred or aggravated during the appellant's 
period of active duty military service in 1968-69 - and 
therefore, none of the new evidence is so significant that it 
must be considered to fairly decide the merits of the claim.

Accordingly, to the extent that the appellant contends that 
the Board failed to accord him what is essentially a merits-
level review of the statutory presumptions of soundness and 
aggravation in connection with the adjudication of this 
appeal (both in the Joint Motion for Remand and the July 2000 
brief, the appellant maintained that the Board did not give 
appropriate consideration or afford him the benefit of these 
provisions), he is misguided.  Relevant case law supports the 
Board on this point.  In Routen v. West, 142 F.3d 1434 
(1998), cert. denied, 119 S. Ct. 404 (Nov. 2, 1998), the 
Federal Circuit held that the misapplication of, or failure 
to apply, a statutory or regulatory burden-shifting 
presumption does not constitute "new and material evidence" 
for the purpose of reopening a claim under 38 U.S.C.A. 
§ 5108.  The Federal Circuit went on to explain that by its 
terms, section 5108 requires "evidence," which the 
regulations describe as "evidence not previously submitted 
to agency decisionmakers which bears directly and 
substantially upon the specific matter under consideration, 
[and] which is neither cumulative nor redundant" and while a 
presumption may well result in a decision favorable to the 
veteran if new and material factual evidence is presented to 
warrant reopening of the case, that is a matter that goes to 
the merits of the case, not one that goes to the question of 
whether the rules of finality are overcome.  Id.  Moreover, 
in Hicks v. West, 12 Vet. App. 86 (1998), the Court rejected 
the veteran's contention that the Board's failure to apply 
the statutory presumptions of soundness and aggravation 
constituted new and material evidence sufficient to reopen 
his claim, citing the Federal Circuit's holding in Routen for 
the proposition that a presumption cannot be treated as a 
form of "new and material evidence" for the purposes of 
reopening a finally disallowed claim.  See also Smith v. 
West, 12 Vet. App. 312 (1999).

Further, the General Counsel has held that the misapplication 
of, or failure to apply, a statutory or regulatory 
evidentiary presumption in a prior final decision cannot, in 
itself, constitute "new and material evidence" within the 
meaning of 38 U.S.C.A. § 5108 for purposes of reopening a 
claim.  See VAOPGCPREC 38-97, 63 Fed. Reg. 31263 (1998).

One further point must be addressed.  In the Joint Motion for 
Remand of January 2000 [p. 18-19] and in his brief of July 
2000, the appellant relies primarily on the holding of the 
Court in Miller v. West, 11 Vet. App. 345 (1998), for the 
conclusion that the Board failed to provide adequate reasons 
and bases for its determination of whether new and material 
evidence has been submitted to reopen this claim.  In Miller 
v. West, the Court held that a medical professional's opinion 
that a condition existed prior to service, if unsupported by 
any contemporaneous clinical evidence or recorded history, is 
no more than a bare conclusion that is insufficient to rebut 
the presumption of soundness.  Id. at 348.  However, even 
assuming that this holding is germane to the matters under 
appellate review at this time - whether the evidence is new 
and material to reopen the appellant's claim - in light of 
the Routen, Hicks and Smith precedent discussed above, the 
Board notes that the holding is distinguishable not only on 
the facts, but by the Federal Circuit's decision in Harris v. 
West, 203 F.3d 1347 (Fed. Cir. Feb. 17, 2000).

In Miller, the Court found that the only evidence supporting 
the Board's conclusion that the veteran's psychiatric 
condition existed prior to service were reports of a 
psychiatric evaluation and a medical board prepared in July 
1968.  Id.  The Court held that because these two reports 
were unsupported by any contemporaneous clinical evidence or 
recorded history in the record, a bare conclusion, even one 
written by a medical professional, without a factual 
predicate in the record did not constitute clear and 
unmistakable evidence sufficient to rebut the statutory 
presumption of soundness.  Id.  The facts in Miller are 
distinguishable from those in this case because there is a 
substantial body of "contemporaneous clinical" and 
"recorded history" evidence in support of a finding that 
the appellant's left shoulder dislocation disorder preexisted 
service.  As thoroughly detailed above, the findings made 
previously by the RO and the Board that his condition 
preexisted service and wasn't aggravated therein were based 
on the appellant's medical history and clinical findings 
reported at the time of his medical evaluation board 
examination in December 1969, as supported by the service 
clinical records in the file, specifically, an October 1969 
treatment report which denoted his reported history of a 
shoulder injury prior to service with occasional dislocations 
thereafter.  Hence, it appears that the medical evaluation 
board's findings in this case were not based on a "bare 
conclusion" without supporting clinical-medical history 
evidence.

Furthermore, as mentioned above, the Federal Circuit's 
decision in Harris v. West limited the scope of the Court's 
holding in Miller by holding that while contemporaneous 
clinical evidence or recorded history may often be necessary 
to satisfy the heavy burden of rebutting the statutory 
presumption of soundness, there was nevertheless no absolute 
rule in the statute, the regulation (38 C.F.R. § 3.304), or 
the case law requiring such evidence before the presumption 
can be rebutted.  Harris, 203 F.3d 1347, 1351 (Fed. Cir. 
2000).  The Federal Circuit stated that the aforementioned 
regulation permitted the fact finder to consider records made 
"prior to, during or subsequent to service" concerning the 
inception of the disease and therefore, it rejected reliance 
on the Miller holding in support of a contention that the 
presumption of soundness could only be rebutted if the 
government adduced preservice clinical evidence showing onset 
prior to induction.  Id.  The Federal Circuit emphasized that 
the Court in Miller was concerned with the overall paucity of 
evidence of preservice mental illness, not the particular 
kind of evidence on which the government sought to rely.  Id.  
Applying Harris to the case at bar, it is clear that the 
prior determinations in this case which found that the 
appellant's left shoulder dislocation disorder preexisted 
service and wasn't aggravated therein were supported to an 
even greater extent by consideration of all the records made 
"prior to, during or subsequent to service."  Again, as 
thoroughly detailed above, the service clinical records, the 
medical evaluation board report, the credible lay evidence 
documenting the appellant's reported history of the 
dislocation injury prior to service (statements made on 
claims forms and in hearing testimony), the letter his 
guardian-parents wrote to the Navy while he was still in 
service regarding the same history, etc., provided an 
overwhelming body of "contemporaneous clinical" and 
"recorded history" evidence to support the findings made 
previously by the RO and the Board that his condition 
preexisted service and wasn't aggravated therein.

Service Connection for Hearing Loss and Tinnitus

Under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of 
submitting evidence sufficient to justify a belief by a fair 
and impartial individual that a claim of entitlement to 
service connection is well grounded.  Robinette, 8 Vet. App. 
69, 73 (1995).

Where the determinative issue involves medical etiology or a 
medical diagnosis, competent medical evidence that a claim is 
"plausible" or "possible" is generally required for the 
claim to be well grounded.  Heuer v. Brown, 7 Vet. App. 379, 
384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

Establishing service connection requires medical evidence of 
a current disability; medical or, in certain circumstances, 
lay evidence of in-service incurrence or aggravation of a 
disease or injury; and medical evidence of a nexus between 
the asserted in-service disease or injury and the present 
disease or injury.  Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) 
(table); Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) 
(expressly adopting definition of well-grounded claim set 
forth in Caluza), cert. denied sub nom. Epps v. West, 118 
S.Ct. 2348 (1998).

Alternatively, the third Caluza element can be satisfied by 
evidence of continuity of symptomatology and medical or, in 
certain circumstances, lay evidence of a nexus between the 
present disability and the symptomatology.  Savage v. Gober, 
10 Vet. App. 488, 495-97 (1997).  With regard to a showing of 
chronic disability in service, the Court concluded in Savage 
that chronicity could be shown by "either evidence 
contemporaneous with service or the presumption period or 
evidence that is post service or post presumption period."  
Savage, 10 Vet. App. at 495.  With regard to showing 
continuity of symptomatology, the Court in Savage stated if 
the chronicity provision is not applicable (because a chronic 
disability was not shown in service or during an applicable 
presumption period), a claim may still be well grounded on 
the basis of § 3.303(b) if the condition is observed during 
service or any applicable presumption period, continuity of 
symptomatology is demonstrated thereafter, and competent 
evidence relates the present condition to that 
symptomatology.  Id. at 497.

The evidence submitted in support of a claim must be accepted 
as true for the purposes of determining whether the claim is 
well grounded except when the evidentiary assertion is 
"inherently incredible" or when the fact asserted is beyond 
the competence of the person making the assertion.  See King 
v. Brown, 5 Vet. App. 19, 21 (1993).

As thoroughly detailed above, although the appellant's 
enlistment audiogram of May 1968 showed some elevated (above 
35) decibels in the higher frequencies (4,000 to 6,000 H) for 
both ears, his service medical records do not document 
treatment or diagnosis for hearing loss or tinnitus at 
enlistment or for the balance of his military service.

The appellant filed his original claim seeking disability 
compensation benefits for hearing loss and tinnitus over 
twenty years after service, in September 1991.  Medical 
records in the file reflect that the appellant has complained 
of hearing loss and tinnitus, which he has related to jet 
aircraft noise exposure that he first noticed in service, but 
these records are of very recent origin, specifically, August 
1990 (audiogram conducted by Ear, Nose, and Throat Clinic of 
Bristol) and November 1993 (VA audio examination that noted 
mild to moderate bilateral hearing loss in the 3,000 to 4,000 
H frequencies).  Although a subsequent addendum report of the 
aforementioned VA audio examination prepared in May 1994 
reflected the examiner's opinion that the appellant had 
hearing loss and tinnitus based on bilateral acoustic trauma, 
it was again emphasized by the examiner that the etiology of 
these conditions relied exclusively on the appellant's 
reported history of such trauma in service.  As indicated 
above, however, the evidence of record does not objectively 
corroborate that he was treated or diagnosed with hearing 
loss and/or tinnitus in service, or that he even experienced 
bilateral acoustic trauma due to jet aircraft noise or due to 
any other noises, and neither condition is clinically 
documented until many years after service.  Further, the 
Board notes that a general physical examination conducted in 
connection with his August 1973 hospitalization at the 
Bristol Memorial Hospital was negative for any abnormal 
pathology of the ears, to include 
complaints/findings/diagnoses of hearing loss and/or 
tinnitus.  Also, Dr. Konrad's SSA examination of December 
1987 specifically noted that the appellant had "good 
hearing" for fairly loud conversational speech at a distance 
of six feet.

When these findings are read together with the balance of the 
evidence, which as stated above does not document complaints, 
treatment, or diagnosis of hearing loss or tinnitus until 
1990, the Board finds that competent evidence establishing a 
nexus, or link, between hearing loss/tinnitus treated or 
diagnosed after service and any incident/event of service has 
not been shown well ground this claim.  In this case, there 
is no competent medical evidence linking the appellant's 
hearing loss/tinnitus complaints noted decades after service 
to any disease or injury in service.  The liberalizing 
evidentiary standards set forth under 38 U.S.C.A. § 1154(b) 
and its corresponding regulatory section, 38 C.F.R. 
§ 3.304(d), are not for application in this case as he does 
not allege that he sustained hearing loss or tinnitus while 
engaged in combat with the enemy.

With respect to the appellant's contentions, the Board does 
not dispute his claim that he participated in duties in 
service that may have exposed him to loud noises.  But as the 
factual record in this case does not document any recorded 
complaints, treatment or diagnosis of hearing loss or 
tinnitus in service or until over 20 years after service, as 
detailed above, the Board finds that the evidence of record 
does not competently link his hearing loss/tinnitus to any 
event or incident of his military service in 1968-69.  And 
while lay evidence may suffice to well ground a claim under 
the continuity of symptomatology provisions of 38 C.F.R. 
§ 3.303(b), Savage, 10 Vet. App. 488, 495 (1997), given the 
extensive evidentiary record in this case developed as a 
result of the appellant's repeated efforts to file for 
benefits, both medical and nonmedical (claims forms, 
statements, hearing testimony, etc.) in nature, the Board 
finds that he has not presented competent evidence to well 
ground this claim based on continuity of symptomatology under 
38 C.F.R. § 3.303(b).  The extensive record in this case 
spans nearly the entire post service period, and during this 
lengthy period, there is no documentation of any kind, 
medical or nonmedical, showing hearing loss/tinnitus 
complaints until 1990, more than 20 years after service.

Moreover, while only medical professionals are competent to 
render medical diagnoses and opinions regarding the etiology 
of a disease or injury, it is clear from the Court's case law 
that lay individuals are competent to report observations of 
their senses (sight, sound, hearing, etc.).  Certainly, 
observable signs or symptoms such as difficulty hearing and 
tinnitus (both from the respective of the impaired person as 
well as others, e.g., a friend or relative who states that he 
or she noticed the person was hard of hearing) would fall 
under this category.  See e.g. Falzone v. Brown, 8 Vet. App. 
398, 405-06 (1995); Layno v. Brown, 6 Vet. App. 465, 469-70 
(1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994).  
However, before the appellant filed his claim seeking 
entitlement to service connection for hearing loss/tinnitus 
in 1991, at which time he submitted the 1990 audio 
examination report, the extensive evidentiary record in this 
case is completely negative for any kind of evidence from 
either the appellant, a friend/relative/coworker, or from a 
medical professional (who might have denoted complaints of 
hearing loss or tinnitus during the course of treatment for 
other conditions), to corroborate his contentions of long-
term suffering endured after service due to these problems.  
Accordingly, the Board does not find this claim well grounded 
based on the lay-evidence based continuity of symptomatology 
under 38 C.F.R. § 3.303(b) in line with the Court's analysis 
in Savage.

Furthermore, while it is argued on appeal in the appellant's 
brief of July 2000 that the examiner's findings reported on 
the November 1993 VA examination and addendum report of May 
1994 constitute competent evidence to link hearing loss and 
tinnitus to service, the Board disagrees because it is clear 
from a plain reading of these examination reports that the 
examiner was simply relating the appellant's own account of 
having had hearing loss and tinnitus since service, which as 
noted above, is unenhanced or supported by additional comment 
by the examiner linking these disorders to an incident or 
event in service.  The specific choice of words and phrasing 
used by the examiner in his May 1994 addendum report, "[h]e 
(the appellant) stated that he first noticed difficulty and 
bilateral tinnitus in 1969 while in service," clearly 
reflects that he did not comment on or otherwise express his 
own medical opinion on the etiology of these disorders.  The 
appellant's attempt to construe the examiner's words in such 
a manner as to convey an alternative interpretation, i.e., 
the examiner opining that in his medical judgment, his 
hearing loss/tinnitus was etiologically related to service, 
is not convincing.  On this point, the Board notes that the 
Court has held that evidence which is simply information 
recorded by a medical examiner, unenhanced by any additional 
medical comment by that examiner, does not constitute 
"competent medical evidence" for purposes of well 
groundedness.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).

Considering the foregoing, the Board concludes that the 
evidence is insufficient to render the appellant's claim of 
service connection for hearing loss and tinnitus well 
grounded.  Caluza, 7 Vet. App. at 498.  As stated above, 
there is neither evidence of a chronic disability manifested 
by either hearing loss or tinnitus shown in service, nor is 
there evidence showing continuity of related symptomatology 
after service, and as such, the Board can identify no basis 
in the record that would make the appellant's claim 
plausible.  38 U.S.C.A. § 5107(a); Grottveit, 5 Vet. App. at 
92, Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); 
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).

Where the veteran has not met this burden, VA has no further 
duty to assist him in developing facts pertinent to the 
claim, including no duty to provide another medical 
examination.  38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 
2 Vet. App. 141, 144 (1992) (where the claim was not well 
grounded, VA was under no duty to provide the veteran with an 
examination).

With regard to his hearing testimony of December 1998, the 
Board observes that it is not bound by the references to a 
"well grounded" claim made in the Board's remand of May 
1993.  At that time, the Board's appellate jurisdiction was 
limited to the left shoulder-new and material evidence claim; 
all of the other claims, including service connection for 
hearing loss and tinnitus, were referred to the RO for 
development and adjudication in the first instance.  Hence, 
the Board in May 1993 lacked jurisdiction to make a 
determination regarding well groundedness.  However, as the 
claims had not been considered by the RO, the Board finds 
that any error made in the Board's remand of May 1993 was 
harmless.

Although where a claim is not well grounded VA does not have 
a statutory duty to assist a claimant in developing facts 
pertinent to the claim, VA may be obligated under 38 U.S.C.A. 
§ 5103(a) to advise a claimant of evidence needed to complete 
his or her application.  This obligation depends on the 
particular facts of the case and the extent to which the 
claimant has been advised of the evidence necessary to well 
ground a claim.  Robinette, 8 Vet. App. 69 (1995).  Here, the 
Board finds that VA has no outstanding duty to inform the 
appellant of the necessity to submit certain evidence to 
complete his application for VA benefits for service 
connection for hearing loss and tinnitus.  Nothing in the 
record suggests the existence of evidence that might well 
ground this claim.  In this respect, the Board is satisfied 
that the obligation imposed by section 5103(a) has been 
satisfied.  See Franzen, 9 Vet. App. 235 (1996) and Wood, 
1 Vet. App. 190 (1991).  It is not shown nor contended that 
additional relevant evidence exists that has not already been 
associated with the claims file.  As detailed above in the 
Factual Background, all of the appellant's service medical 
records which are available have been associated with the 
claims file and it is not alleged or inferred by the balance 
of the evidence that additional post service medical records 
relating to hearing loss/tinnitus are available but which 
have not been obtained and associated with the file.

Accordingly, the Board must deny the appellant's claim of 
service connection for hearing loss and tinnitus as not well 
grounded.  See Edenfield v. Brown, 8 Vet. App. 384 (1996) (en 
banc) (disallowance of a claim as not well grounded amounts 
to a disallowance of the claim on the merits based on 
insufficiency of evidence).

The Board acknowledges that it has decided the present appeal 
as to this issue on a different legal basis than the RO did.  
When the Board addresses in a decision a question that has 
not been addressed by the RO, it must be considered whether 
the claimant has been given adequate notice and opportunity 
to respond and, if not, whether the claimant will be 
prejudiced thereby.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  However, the Board concludes that the appellant has 
not been prejudiced by the decision herein.  The Board has 
considered the same law and regulations.  The Board merely 
concludes that the appellant did not meet the initial 
threshold evidentiary requirements of a well-grounded claim 
under the standards set forth in Caluza.  The result is the 
same.


ORDER

New and material evidence sufficient to reopen a claim for 
service connection for left shoulder dislocation not having 
been submitted, the benefits sought on appeal remain denied.

The appellant having failed to submit a well-grounded claim, 
entitlement to service connection for hearing loss and 
tinnitus is denied.


REMAND

In order to ensure proper compliance with the law, applicable 
regulations, and precedent decisions of the Court, the Board 
finds that additional development of the evidentiary record 
is required to address the issues raised in the Joint Motion 
for Remand pertinent to the appellant's claim of service 
connection for PTSD.  The Board notes a precedent holding of 
the Court issued on March 30, 1999, provides new guidance for 
the adjudication of claims for service connection for PTSD 
based on personal assault.  See Patton v. West, 12 Vet. App. 
272 (1999).  Additionally, the Board notes that the 
regulation governing the award of service connection for 
PTSD, 38 C.F.R. § 3.304(f), was amended during the pendency 
of this appeal.  See 64 Fed. Reg. 32807 (June 18, 1999).  The 
new version of the regulation is effective from March 7, 
1997, and hence, as this claim was still pending on that 
date, the revised version must be considered.  Karnas v. 
Derwinski, 1 Vet. App. 308, 313 (1991).  One of the changes 
to section 3.304(f) stipulates that an award of service 
connection for PTSD depends on whether there is medical 
evidence diagnosing the condition in accordance with 
38 C.F.R. § 4.125(a), which the Board observes is a reference 
to a diagnosis made on the criteria set forth in the DSM-IV.  
Because the appellant has submitted a well-grounded claim for 
service connection for PTSD, the duty to assist attaches, 
38 U.S.C.A. § 5107(a), and in lieu of the fact that 
additional stressor-verification development will be 
required, as set forth below, the Board believes that the RO 
should have the appellant examined by VA in order to 
determine whether he has a DSM-IV diagnosis of PTSD based on 
his reported stressors.

In the Patton case, the Court found error in the Board's 
decision because the Board did not discuss the special 
evidentiary procedures for PTSD claims based on non-combat 
stressors.  With regard to combat service/stressor 
verification, the record does not reflect that the appellant 
received any awards or decorations for valor, combat 
experience or combat injuries, nor is there any other 
evidence of record he engaged in combat with the enemy.  
Where a veteran-claimant did not serve in combat or the 
stressor is not related to combat, his lay testimony, by 
itself, will not be enough to establish the occurrence of the 
alleged stressor.  West (Carelton) v. Brown, 7 Vet. App. 70, 
76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  
Instead, the record must contain evidence which corroborates 
his testimony as to the occurrence of the claimed stressor, 
and special development procedures are required pursuant to 
the M21-1.  38 C.F.R. § 3.304(d), (f); VA ADJUDICATION 
PROCEDURE MANUAL M21-1, Part III, Section 5.14(c) (Feb. 20, 
1996).

In connection with the development of this claim, the RO sent 
the appellant a letter in April 1994 asking to identify his 
alleged in-service stressor incidents and to provide all 
details known to him concerning these incidents, i.e., the 
who, what, where and when of each event.  In May 1994, the RO 
received a Statement in Support of Claim, VA Form 21-4138, in 
which the appellant set forth four stressors:

Stressor #1 involved his account of witnessing the beating of 
a sailor aboard the USS AMERICA sometime between January and 
March 1969.  He stated that this event led to a Captain's 
Mast trial and threats on his life due to his testifying for 
the prosecution.  The appellant stated further that the 
threats led to Stressor #2, the incident that occurred in the 
spring or early summer 1969 in which he was thrown down a 
ladder shaft head first.  He stated that he was walking 
towards the ladder shaft when someone yelled, "theres [sic] 
the son-of-a-bitch," whereupon he was grabbed and thrown 
down the ladder shaft.  The balance of the account denoted a 
bloody stumble through the chow-line, a fall at the salad bar 
and his placement in a wire basket.  The next memory he 
recalled was seeing a corpsman working on his head.  He 
stated that he hurt all over and remembered the visits by 
Messrs. [redacted] and [redacted].  Regarding these two stressors, 
the appellant stated that he had no memory of anyone's name 
who was involved, including the man who was beaten.

Stressor #3 as reported by the appellant's in his May 1994 
statement involved his account of suffering burn injuries to 
his face and eyes in June 1969 when he was working in the 
lower decks of the USS AMERICA.  In support of his claim, he 
submitted a copy of a service medical record showing 
treatment for flashburns of the eyes.  Stressor #4 concerned 
his fall into a control hatch while on the AMERICA's flight 
deck in July 1969.  He stated that he was on the edge of a 
jet blast and feared being blown into the ocean so he jumped 
into the hatch and in the process, severely turned his ankle.  
He then stated that the weakness in his left ankle caused him 
to sustain a number of falls which further injured his left 
shoulder.

In support of his aforementioned statement, the appellant 
submitted evidence, most of which was duplicative of private 
medical reports previously considered, but which included 
some private therapy consultation reports dated in 1977.  
According to the appellant, he was ordered by his employer at 
that time, United Telephone, to undergo therapy to determine 
why he was having problems.  The reports were prepared by a 
social worker, W. B. Pagel, and reflect therapy consultations 
between February and May 1977.  The February report lays out 
in some detail the appellant's family history, to include the 
marital separation and his witnessing of the death of his 
brother at the hands of a guardian, and his military service 
which was noted to be significant for a fall of fifteen feet 
that injured his left shoulder and head.  The report makes no 
mention of the beating of the sailor, the threats on his 
lift, etc., however.  The March 1977 report noted that he had 
a schizophrenic break approximately one-and-a-half years ago 
and that he was suffering from increasingly worse chest pain.  
The May report indicated that the appellant was doing well as 
work and that he wished to terminate his therapy.  His plans 
to build a house were progressing well and he stated that the 
time spent in therapy was a waste of time.  Mr. Pagel's 
termination note indicated a diagnosis of paranoid 
schizophrenia, not psychotic at present, with moderate 
improvement noted at termination.  A report signed by Mr. 
Pagel's clinic director, Dr. Bockian, referenced the same 
diagnosis.

In addition, the RO received in September 1994 a statement 
from the appellant regarding his response to a follow-up PTSD 
development letter.  He stated that records from a Captain's 
Mast trial and Master at Arms investigation would prove that 
the alleged beating incident occurred aboard the USS AMERICA 
in 1969.  He requested that the RO attempt to obtain these 
records and he provided a search parameter extending from 
December 1968 to March 1969.  In December 1994, the RO sent 
the appellant a follow-up letter requesting that he provide 
the name of defendant in the trial, a more definitive date of 
the alleged assault and of the trial, and if he received a 
subpoena to appear at the trial.  The appellant responded to 
this letter in December 1994 via a form 21-4138.  He stated 
that it was impossible for him to provide the name of the 
defendant, the date of the trial, or any other records due to 
passage of time (25 years).  He went on to state that he did 
not think any records from the Captain's Mast were needed to 
make a decision on his case in any event.  Therefore, the 
appellant stated that the RO should cancel its search request 
if the information he provided was insufficient for further 
developmental inquiry.

Although the appellant has provided factually inconsistent 
accounts of his stressors, in light of the Court's precedent 
holdings cited above, it is necessary to address the matter 
of whether there is sufficient corroboration of his stressors 
upon completion of the special development procedures under 
M21-1, Part III, Sec. 5.14(c) for non-combat stressors, and 
upon completion thereof, further medical development to 
determine whether any "behavioral changes" that occurred at 
or close in time to the alleged stressor incidents could 
possibly indicate the occurrence of one or more of the 
alleged in-service stressors, as described in detail in the 
M21-1.

Accordingly, this case is REMANDED to the RO for the 
following development:

1.  The RO should contact the appellant 
and inform him that may submit any 
additional corroborating evidence he may 
have pertaining to alleged stressors 
experienced during his military service 
from October 1968 to December 1969.  The 
appellant should be advised that a 
meaningful research of his stressors will 
require him to provide the "who, what, 
where and when" of each stressor.  
Further, the RO should inform the 
appellant that he may submit any other 
evidence to verify his alleged stressors 
from military as well as nonmilitary 
sources.  The RO should assist the 
appellant in obtaining such evidence, as 
appropriate.  In connection with this 
development, the RO should ensure that 
all appropriate special development 
procedures mandated by M21-1, Section 
5.14(c) for verification of non-combat 
stressors is fully accomplished and 
documented in the claims folder, to 
include issuance of the special 
development letter to the appellant 
advising him of the steps necessary to 
verify his non-combat stressors.

If deemed necessary based on the 
information provided by the appellant, 
the RO should request verification of his 
stressors with the U. S. Armed Services 
Center for Research of Unit Records 
(USASCRUR).  USASCRUR should attempt to 
verify any detailed stressor information 
provided by the appellant.  All 
documents, correspondence, reports or 
statements obtained or generated as a 
result of these inquiries should 
thereafter be associated with the claims 
folder.

2.  Following the above, the RO must 
make a specific determination, based 
upon the complete record, with respect 
to whether the appellant was exposed to 
a stressor or stressors in service, and 
if so, what was the nature of the 
specific stressor or stressors.  In 
rendering this determination, the 
attention of the RO is directed to the 
law cited in the discussion above.  If 
official service records or alternative 
records discussed in M21-1, Part III, 
Sec. 5.14c corroborate his stressor 
allegations, the RO should specify that 
information.  The RO should also 
indicate whether any behavioral changes 
that occurred at or close in time to the 
alleged stressor incidents could 
possibly indicate the occurrence of one 
or more of the alleged in-service 
stressors and if so should decide 
whether this evidence needs the 
interpretation by a clinician.  See M21-
1, Part III, 5.14c (9).  If the RO 
determines that the record establishes 
the existence of a stressor or 
stressors, the RO must specify what 
stressor or stressors in service it has 
determined are established by the 
record.  In reaching this determination, 
the RO should address any credibility 
questions raised by the record.

3.  If the RO finds that the appellant 
has a verified stressor, it should 
schedule him for a comprehensive VA 
psychiatric examination to determine the 
diagnoses of all psychiatric disorders 
that are present.  This examination, if 
feasible, should be conducted by a 
psychiatrist who has not previously 
examined, evaluated or treated the 
appellant.  The claims folder and a copy 
of this remand must be provided to the 
examiner prior to the examination.  The 
examiner should determine the true 
diagnoses of any currently manifested 
psychiatric disorder(s).  The 
diagnosis(es) must be based on 
examination findings, all available 
medical records, complete review of 
comprehensive testing for PTSD, and any 
special testing deemed appropriate.  A 
multiaxial evaluation based on the 
current DSM-IV diagnostic criteria is 
required.  If a diagnosis of PTSD is 
deemed appropriate, the examiner should 
specify (1) whether each alleged stressor 
found to be established by the record was 
sufficient to produce PTSD; and (2) 
whether there is a link between the 
current symptomatology and one or more of 
the in-service stressors found to be 
established by the record and found 
sufficient to produce PTSD by the 
examiner.

In addition, the examiner must comment on 
the approximate date of onset and 
etiology of any diagnosed psychiatric 
disorder as shown by the evidence of 
record, and in so doing, the examiner 
should attempt to reconcile the multiple 
psychiatric diagnoses and/or assessments 
of record based on his/her review of all 
of the evidence of record, particularly 
with respect to prior diagnoses of PTSD.

Further, in line with the M21-1 
provisions, the examiner is requested to 
provide detailed medical analysis and 
interpretation of the diagnoses found 
present on examination in light of all 
the evidence of record for the purpose of 
addressing whether any behavioral changes 
that occurred at or close in time to the 
alleged stressor incidents could possibly 
indicate the occurrence of one or more of 
the alleged in-service stressors.

A complete rationale for all opinions 
expressed must be provided.  The copy of 
the examination report and all completed 
test reports should thereafter be 
associated with the claims folder.

4.  The appellant must be given adequate 
notice of any requested examination, 
which includes advising him of the 
consequences of failure to report for a 
scheduled examination.  If he fails to 
report for an examination, this fact 
should be documented in the claims 
folder.  A copy of all notifications must 
be associated with the claims folder.

5.  Subsequently, the RO should review 
the claims folder and ensure that all of 
the foregoing development actions have 
been conducted and completed in full. 
Specific attention is directed to the 
examination reports to ensure that they 
are in compliance with the directives of 
this REMAND.

6.  After completion of the above, the RO 
should readjudicate the issue on appeal 
that is subject to these remand 
instructions (service connection for 
PTSD), with consideration given to all of 
the evidence of record, including any 
additional medical evidence obtained by 
the RO pursuant to this REMAND.  The 
readjudication of the PTSD claim must be 
on a de novo basis as the claim has been 
found well grounded.  Further, the 
readjudication of this claim must be in 
accord with the revised version of 38 
C.F.R. § 3.304(f), as amended effective 
from March 1997.  The RO should also 
carefully consider the benefit of the 
doubt rule within the analytical 
framework provided by applicable caselaw 
for PTSD claims, such as in the Patton, 
Suozzi, Cohen and Moreau decisions.  In 
this regard, if the evidence is not in 
equipoise the RO should explain why.  
Cartwright v. Derwinski, 2 Vet. App. 24, 
26 (1991).  If any benefit sought on 
appeal, for which a notice of 
disagreement has been filed, remains 
denied, the appellant and his 
representative should be furnished a 
supplemental statement of the case and 
given the opportunity to respond thereto.

7.  The appellant is hereby informed that 
he should assist the RO, to the extent 
possible, in the development of his 
claim, and that failure to cooperate or 
to report for any scheduled examination 
may result in an adverse decision.  Wood 
v. Derwinski, 1 Vet. App. 191, 193 
(1991).

Thereafter, the case should be returned to the Board, if in 
order.  The appellant need take no action until otherwise 
notified.

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

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
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. 2000) (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.



		
	JOAQUIN AGUAYO-PERELES
	Member, Board of Veterans' Appeals