Citation Nr: 0336927
Decision Date: 12/08/03	Archive Date: 02/11/04

DOCKET NO. 02-11 903                        DATE

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

THE ISSUE

Entitlement to service connection for pseudofolliculitis barbae.

(The issues of entitlement to service connection for right and left carpal tunnel syndrome will be the subject of a later decision.)

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel

INTRODUCTION

The veteran served on active duty from August 1991 to March 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) which denied entitlement to the benefits sought.

It is noted that the issue of entitlement to service connection for right and left carpal tunnel syndrome have been developed for appellate review; however, the Board is currently undertaking additional development on those issues pursuant to authority granted by 38 C.F.R. § 19.9(a)(2). When the development actions are completed, the Board will provide notice of the development as required by Rule of Practice 903; 38 C.F.R. § 20.903. After giving the notice and reviewing the veteran's response to the notice, the Board will prepare a separate decision addressing these Issues.

FINDING OF FACT

The veteran's pseudofolliculitis barbae began in service.

CONCLUSION OF LA W

Service connection for pseudofolliculitis barbae is warranted. 38 U.S.C.A.§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002).

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REASONS AND BASES FOR FINDING AND CONCLUSION

Background

Service medical records show that the veteran reported problems with shaving in August 1992. The diagnosis was psuedofolliculitis barbae. It was noted that a shaving waiver was given. A Physical Profile Serial Report dated August 1992 recommended that the veteran shave 3 times per week with a razor leaving a stubble not to exceed 1/4 inch. This recommendation expired on September 1992. It was noted that this was not a permit to grow a beard. It became a shaving waiver for the recommended period only when concurrence was indicated by the unit commander. In his medical history dated September 1996, the veteran indicated that he had had psuedofolliculitis barbae for 5 to 10 years. The assessment was that his psuedofolliculitis barbae was in good control. In January and February 1998, the veteran was seen for a skin rash on his neck. He was diagnosed with tinea corporis.

A December 2001 V A progress note indicates the veteran was seen for a few folliculocentric firm papules along beard area. The assessment was psuedofolliculitis barbae, not too inflamed today in beard area.

Criteria

There has been a significant change in the law during the tendency of this appeal. On November 9,2000, the President signed into law the Veterans Claims Assistance Act of2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 D.S.C.A. §§ 5100,5102,5103, 5103A, 5106, 5107, 5126, (West Supp. 2002); see Karnas v. Derwinski, 1 Vet. App. 308,312-13 (1991); cf Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002) (holding

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that only section 4 of the VCAA, amending 38 U.S.C. § 5107, was intended to have retroactive effect).

The final rule implementing the VCAA was published on August 29,2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9,2000, as well as to any claim filed before that date but not decided by VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).

With regard to the development that has been undertaken in this case, the record includes service medical records and a VA progress note dated December 2001.

Additionally, the record shows that the veteran has been notified of the applicable laws and regulations, which set forth the criteria for entitlement to the benefit at issue. The discussions in the rating decision and the statement of the case have informed the veteran of the information and evidence necessary to warrant entitlement to the benefit sought.

The veteran was sent a VCAA letter in March 2001. In accordance with the requirements of the VCAA, the letter informed the appellant what evidence and information VA would be obtaining. The letter explained that VA would make reasonable efforts to help him get evidence such as medical records, employment records, etc., but that he was responsible for providing sufficient information to VA to identify the custodian of any records.

Thus, through items of correspondence the RO has informed the veteran of the information and evidence necessary to substantiate his claim. Therefore, further

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development is not needed to meet the requirements of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The veteran seeks service connection for pseudofolliculitis barbae. Applicable law provides that service connection will be granted if it is shown that the veteran has a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303,3.304. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).

Analysis

Service medical records show that the veteran was treated in service for pseudofolliculitis barbae and given shaving instructions and at one point placed on a profile. A VA outpatient treatment record dated December 2001 shows that the veteran was seen for a few folliculocentric firm papules along his beard area. He was diagnosed with pseudofolliculitis barbae.

Under these circumstances the veteran must be granted the benefit of the doubt. Medical records show a diagnosis in service and a current diagnosis of pseudofolliculitis barbae. Based on the competent medical reports in the record, the evidence is at least in equipoise as to this question. Under these circumstances the veteran must be granted the benefit of the doubt. For this reason, the veteran is granted service connection for pseudo folliculitis barbae.

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ORDER

Entitlement to service connection for pseudofolliculitis barbae is granted.

Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27,2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form:

. These changes apply to the section entitled "Appeal to the United -States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel.
. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.

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529647784     031030    1074087    03-29713   

DOCKET NO. 02-03091                         DATE OCT 30 2003

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah

THE ISSUE

Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Theresa M. Catino, Counsel


REMAND

On March 6, 2003, the Board of Veterans' Appeals (BV A or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development.

Prior to May 1,2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002).

However, on May 1,2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (hereinafter "DA V"). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration, and without having to obtain the appellant's waiver.

Following the Federal Circuit's decision in DAV, the General Counsel issued a precedential opinion, which concluded that DAV did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision and other policy considerations, the Department of Veterans Affairs (VA) determined that VBA would resume all development functions. In other words, aside from the limited

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class of development functions that the Board is statutorily permitted to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all evidence development will be conducted at the regional office (RO) level.

In the event that you appeared at a hearing before a Veterans Law Judge (VLJ) other than the VLJ signing this remand, be advised that if your case is returned to the Board, it will be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the following:

The RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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

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

This 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 2002) (Historical and Statutory Notes). In

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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.

	S. KELLER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

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343644138     031103    788211    03-30083

DOCKET NO. 98-05 334                   DATE NOV 03 2003

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness.

2. Entitlement to service connection for amenorrhea, to include as due to an undiagnosed illness.

3. Entitlement to service connection for muscle and joint pain of the legs, to include as due to an undiagnosed illness.

4. Entitlement to service connection for lymphocytosis.

ATTORNEY FOR THE BOARD

C. Hancock, Counsel

REMAND

In October 2002, the Board of Veterans' Appeals (BVA or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development.

Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002).

However, on May 1,2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary a/Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (hereinafter "DAV"). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration, and without having to obtain the appellant's waiver.

Following the Federal Circuit's decision in DAV, the General Counsel issued a precedential opinion, which concluded that DAV did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU.

Recently, in light of the Federal Circuit Court's decision and other policy considerations, the Department of Veterans Affairs (VA) determined that VBA

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would resume all development functions. In other words, aside from the limited class of development functions that the Board is statutorily permitted to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all evidence development will be conducted at the regional office (RO) level.

In the event that you appeared at a hearing before a Veterans Law Judge (VLJ) other than the VLJ signing this remand, be advised that if your case is returned to the Board, it will be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the following:

1. If the records have not been associated with the claims file, contact the appropriate State or federal agency and obtain verification of the following:
a) the veteran's period(s) of active duty with the U.S. Anny from December 1988 to March 1992, and of the character of service, and
b) the dates of any service in the Southwest Asia theater of operations during the Persian Gulf.

2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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

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

This 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 2002) (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. 8.43 and 38.02.

	S. KELLER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 D.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.P.R. § 20.1100(b) (2002).

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583312415     031016    1178379    03-27784

DOCKET NO. 98-18 171                        DATE OCT 16 2003

On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to an increased rating for a low back disability, currently evaluated as 60 percent disabling.

2. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities (TDIU).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Joseph P. Gervasio

INTRODUCTION

The veteran served on active duty from July 1985 to July 1989.

This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA).

In September 1996 RO increased the 20 percent rating in effect for the low back disorder to 60 percent. This appeal is also taken from a January 1998 rating decision that denied entitlement to a total rating by reason of individual unemployability due to service connected disabilities.

The case was remanded by the Board in April 2000.

FINDINGS OF FACT

1. The veteran's low back disorder is primarily manifested by severe limitation of , motion, pain, muscle spasms, tenderness and complaints of radiculopathy radiculopathy, is productive of no more than pronounced impairment without incapacitating episodes having a total duration of at least six weeks during the past 12 months.

2. Service connection is currently in effect for a low back disorder, rated 60 percent disabling.

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3. The veteran reported that he has a Bachelors Degree in business, an associates degree in accounting and additional credits toward a degree in Civil Engineering. He last worked full time as an electrician in 1991.

4. The veteran's service-connected low back disability does not render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational background.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 60 percent for a low back disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 3.321, Part 4, Diagnostic Code 5293 (2001), (2002).

2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340,3.341,4.16 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9,2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist.

The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29,2001. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002).

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The new law and regulations require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The record reflects that the veteran and his representative were provided with a copy of the appealed rating actions, and were provided a Statement of the Case for the issues. In addition, he was provided with a Supplemental Statement of the Case in August 2002 that included the provisions of the VCAA and what evidence the VA would obtain. Quartuccio v. Principi, 16 Vet. App. 182 (2002). These documents provided notification of the information and medical evidence necessary to substantiate this claim. The RO has also made reasonable efforts to obtain relevant records adequately identified by the veteran. The veteran has been afforded a V A examination during the course of this claim and received a hearing before the RO. Thus, under the circumstances in this case, VA has satisfied its duties to notify and assist the veteran, and adjudication of this appeal poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

The service medical records show that the veteran received intermittent treatment for low back complaints. A VA examination conducted in August 1991 revealed a diagnosis oflumbar paravertebral myositis and degenerative disc disease L4-L5 and L5-Sl. In October 1991 the RO granted service connection for lumbar paravertebral myositis and degenerative disc disease L4-L5 and L5-S1 and assigned a 20 percent rating which remained in effect until the current claim.

An examination was conducted by VA in March 1994. At that time, the veteran complained of low back pain that radiated to the posterior aspect of both legs and was associated with cramps and numbness. He also had pain in both legs, with radiation to the feet and back. He stated that his right thigh was thinner than his

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left. A CT scan of the lumbosacral spine that reportedly performed in 1990 showed degenerative changes and diffuse posterior to the left bulging disc L4- L5 and also diffuse posterior bulging disc circumferentially of L5-S1 without evidence of herniation or spinal canal stenosis.

The examination showed atrophy of the right quadriceps vastus medialis part. The right quadriceps measured 54 cm. and the left quadriceps measured 58 cm. There was no scar formation. There were no adhesions and no damage to the tendons, bones, joints or nerves. Weakness of the right quadriceps muscle was noted. There was no evidence of pain to palpation and no evidence of muscle hernia.

An examination of the spine showed no postural abnormalities of the back. There were no fixed deformities or atrophy of the muscles of the back. There was tenderness to palpation on lumbosacral paravertebral muscles. Forward flexion was to 100 degrees and backward extension was to 30 degrees. Left lateral flexion was to 30 degrees and right lateral flexion was t045 degrees. Rotation was to 40 degrees bilaterally. The straight leg-raising test was positive, bilaterally. There was diminished pinprick and smooth sensation in the right L5 dermatome of the foot. The right quadriceps muscle strength was 4/5. There was atrophy of the right quadriceps muscle vastus medialis part. There was objective evidence of pain on all movements of the lumbosacral spine.

The diagnoses were atrophy of the right quadriceps muscle vastus medialis part; clinical right L4 radiculopathy; bulging left L4- L5 and diffuse posterior bulging L5-SI by CT scan of 1990; and focal midline protrusion of the L4-L5 disc, with evidence of degenerative disc disease by lumbosacral spine MRI performed in 1992, In the examiner's opinion, the disability of the veteran's legs was directly related to his service connected back condition.

Received in 1996 and 1997 were statements from prospective employers of the veteran, who indicated that the veteran was unsuccessful in his application for employment.

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Received in January 1998 was the veteran's application for increased compensation based on unemployability. At that time he indicated that he last worked in 1991 as an electrician. He became to disabled to work in 1996. He had a Bachelors degree in business and accounting.

The veteran testified at a hearing at the RO in November 1998. At that time, the testimony centered on the issue of a total rating by reason of individual unemployability. The veteran indicated that he had a Bachelor's degree in Commercial Administration, an Associates degree in accounting, and was pursuing a degree in Civil Engineering. The veteran indicated that he was not currently working, and had last been employed in October 1998 for the Department of Commerce, involving work with the Census. He also reported having worked as an electrician, but had had to abandon that work because of his back disorder. He stated that he was in constant pain from his back disorder and that he received treatment at VA. He took medication for his back pain.

An examination was conducted by VA in December 1998. At that time, he reported mild low back pain with radiation to the leg. Upon walking, he had loss of balance and strength. There was no bowel or bladder dysfunction. He was currently not taking pain medication for his back pain, but had done so 3 days earlier. He had had no recent visits to the emergency room during the last year due to back pain. Precipitating factors included driving for a long period of time, sitting or standing for a long period of time and lifting his 25 pound daughter. Medication and rest alleviated the pain. He was unemployed. He stated that he was unable to run or ride a bicycle.

On examination forward flexion was to 90 degrees, backward extension was to 30 degrees, lateral flexions was to 40 degrees and rotations were to 35 degrees. There was mild objective evidence of painful motion on all movements of the lumbar spine. There was no objective evidence of weakness of the legs, with normal muscle strength graded 5 out of 5. There was no tenderness to palpation. There was no muscular atrophy of the lower extremities and the veteran walked with a normal gait. Knee jerks were diminished +2 bilaterally and symmetric. He had a  

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positive straight leg raising and Lasegue's sign in both legs. He had diminished pinprick and smooth sensation on the right L5 dermatomes of the foot. The diagnosis was herniated nucleus pulposus, with radiculopathy.

An examination was conducted by VA in January 2002. At that time, the veteran stated that he had had some worsening and some improvement in his low back pain. He stated that the pain was constant, but that the intensity oscillated. He did not use pain medicine all of the time because it irritated his stomach. The pain was described as sharp, with radiation down both lower extremities, although it was mostly on the right. He complained of numbness on the low back and on the legs. He denied fecal or urinary incontinence. He complained of constipation and of decreased erection strength. He also complained of pain on his vertebrae and of the muscle of the back. On examination flexion was to 30 degrees, without pain, and 45 degrees with pain. Extension was to 10 degrees and lateral bending to the right and left was to 12 degrees. There was tenderness to palpation from L3 toL5 and mild spasm of the paravertebral muscles between these vertebrae. There was no lower extremity atrophy. Muscle testing was 5 by 5 bilaterally. Deep tendon reflexes were +1 at both patella and +2 at both Achilles tendons. Straight leg raising tests were negative. Lasegue's test was negative. A CT scan of the lumbar spine done in 1995 showed disc bulging with associated degenerative disc disease L4- L5. The diagnosis was lumbar myositis and disc disease L5- L5 and L5-S 1. The examiner commented that there was no physical evidence of lumbar radiculopathy on this examination. It was the examiner's opinion that the veteran was able to sustain gainful employment for jobs in which he had training. There should be no impediment to be able to realize jobs in Accounting, Applied Science or Civil Engineering.

VA outpatient treatment records dated from 1991 to July 2002 have been received and reviewed. These records show treatment for various disabilities, including his service-connected low back pain. A February 1995 electromyographic examination revealed findings that were compatible to bilateral L5 radiculopathy.

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Analysis

Disc Disease of the Lumbosacral Spine

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities.

Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2 (2002), the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In evaluating the veteran's claims, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The RO has assigned a 60 percent rating for the disc disease of the lumbosacral spine in accordance with the criteria set forth in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 5293.

It is noted that, during the course of this appeal, the law applicable to the evaluation of intervertebral disc disease, has been revised. Since this change in law occurred while appeal was pending, the Board must apply the version of the law that is more favorable to the claim. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).

Under the old rating criteria, moderate intervertebral disc syndrome, with recurring attacks, is rated as 20 percent disabling. A 40 percent evaluation requires severe recurring attacks, with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002).

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Under the new rating criteria, evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.
With incapacitating episodes having a total duration of at least six weeks during the past 12 months..................
60

With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.....................................................
40
With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.....................................................
20

With incapacitating episodes having a total duration of at least one week but less
than two weeks during the past 12 months	;................
10

Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.

Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.

Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each

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segment on the basis of chronic orthopedic. and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Code 5293 (Effective September 23,2002)

A VA General Counsel opinion held that Diagnostic Code 5293 involves loss of range of motion and that consideration of38 C.F.R. §§ 4.40 and 4.45 are applicable. VAOPGCPREC36-97, 63 Fed. Reg. 31,262 (1998).

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See note at "diseases of the peripheral nerves" in 38 C.F.R. § 4.124a.

Diagnostic Code 8520 provides that incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation if it is mild, a 20 percent evaluation if it is moderate, a 40 percent evaluation if it is moderately severe or a 60 percent evaluation if it is severe (with marked muscular atrophy). An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve. With complete paralysis of the sciatic nerve, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

A 60 percent evaluation may be assigned for complete bony fixation (ankylosis) of the spine at a favorable angle. A 100 percent evaluation may be assigned for complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie- Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a; Diagnostic Code 5286 (2002).

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Diagnostic Code 5292 provides 10 percent rating for mild limitation of motion of the lumbar spine. A 20 percent rating is warranted for moderate limitation of motion. A maximum 40 percent evaluation requires severe limitation of motion.

Diagnostic Code 5295, relating to lumbosacral strain, provides that a 10 percent disability rating is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent disability rating is assigned where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent disability rating is properly assigned where the symptoms are severe, with listing of whole spine to opposite side, positive Goldwaithe's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-athritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).

The veteran is already receiving the maximum schedular evaluation for intervertebral disc syndrome under the old rating or revised rating criteria as it relates to incapacitating episodes. The current 60 percent maximum schedular rating is meant to compensate him for the related industrial impairment. In. order to be entitled to a higher schedular rating there must be complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity. The current medical evidence shows no evidence of ankylosis.

Likewise the current 60 percent rating exceeds that maximum rating of 40 percent for both limitation of motion and lumbosacral strain. The revised Diagnostic Code 5293 permits alternatively rating intervertebral disc syndrome based on separate evaluations under orthopedic and neurological codes. Assuming the veteran has severe limitation of lumbar motion (Diagnostic Code 5292) or severe lumbosacral strain ( Diagnostic Code 5295), the maximum rating would be 40 percent under these orthopedic codes.

The recent V A examination showed that the veteran has disc disease L5-L5 and L5-S1. Therefore, the most appropriate neurologic code Diagnostic Code 8520 for

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impairment of the sciatic nerve. During the recent V A examination the veteran complained of constant pain, radiculopathy, and numbness on the low back and legs. However, the examination showed lower extremity atrophy, +2 at both Achilles tendons and a negative straight leg raising test Additionally, the examiner indicated that there was no objective evidence of radiculopaty. As such the Board finds that the current evidence fails to show that the veteran has more than moderate incomplete paralysis of the sciatic nerve. Assuming the veteran's right sciatica is moderate, such would be rated 20 percent under Diagnostic Code 8520.

If orthopedic manifestations of the veteran's low back condition are rated 40 percent, and the neurological manifestations of the low back condition are rated 20 . percent, the result under the combined ratings table of 38 C.P.R. § 4.25 is a combined rating of 50 percent So, even by this method a rating higher than the current 60 percent rating for the low back disability is not warranted under reference to the new version of Diagnostic Code 5293.

It can be argued that a higher rating should be assigned on an extraschedular basis under 38 C.P.R. § 3.321(b)(1).

In exceptional cases, where the schedular evaluation is found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation of Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing nonn in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.P.R. § 3.321(b)(I). The Board does not have authority to assign an extraschedular rating in the first instance, although in appropriate cases it may refer the matter to a designated VA official for consideration of an extraschedular rating. Bagwell v. Brown, 9 VetApp. 337 (1996).

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Here, there is no showing that the veteran's low back disorder involves an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to warrant a higher evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The current degree of industrial impairment is contemplated in the 60 percent rating. Thus the Board will not refer the case for extraschedular consideration. Accordingly, the Board finds that the weight of the evidence is against the veterans claim.

TDIU

The veteran is also seeking a total rating by reason of individual unemployability. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.

When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

Service connection is in effect for a low back disability rated as 60 percent disabling. Thus, the veteran satisfies the schedular requirements for a TDIU. The veteran reported that he had a bachelor's degree in Commercial Administration and was pursuing a degree in Civil Engineering. The record shows that he has significant problems with his back disorder, his only service connected disorder, but this fact is reflected in the current 60 percent rating. As previously indicated during the most recent VA examination, the veteran's complaints included constant pain,

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radiculopathy and numbness. The examination showed severe limitation of motion, muscle spasms, and tenderness in the back area. However, there was no objective evidence of radiculopathy. Additionally, the examiner opined that the veteran was able to sustain gainful employment for positions consistent with his education and experience. In view of the current medical evidence the Board concurs with this opinion. Accordingly, it is the judgment of the Board that the weight of the evidence is against the veteran's claim.

ORDER

Entitlement to a rating in excess of 60 percent for intervertebral disc disease is denied.

Entitlement to a total rating based for compensation purposes based on individual unemployability is denied.

ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27,2001. See the Veterans Education and Benefits Expansion Act of2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form:

. These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18,1988" is no longer required to appeal to the Court.

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(2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel.
. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.

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029586244     031124    1087834    03-32816

DOCKET NO. 02-11 818                        DATE NOV 24, 2003

On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an effective date earlier than May 4, 1994, for the award of a 100 percent evaluation for bipolar disorder.

REPRESENTATION

Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs

ATTORNEY FOR THE BOARD

W. T. Snyder, Associate Counsel

INTRODUCTION

The appellant had active service from October 1977 to May 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which assigned an effective date of May 4, 1994.

In July 1994, the appellant filed for service connection for a shoulder condition. The May 1996 rating decision denied service connection. The appellant's September 1996 notice of disagreement (NOD) addressed only the effective date assigned for the evaluation of his bipolar disorder. Therefore, the issue of a shoulder condition is not before the Board and will not be a part of this decision.

In June 1999 and May 2001 statements, the appellant made reference to clear and unmistakable error (CUE) as a basis for awarding an earlier effective date. Claims based on CUE may be submitted solely as concerns decisions which are final and binding. 38 C.F.R. § 3.105(a) (2003). Further, claims based on CUE must be made with specificity, Fugo v. Brown, 6 Vet. App. 40,  43-44 (1993). In the present case, the record is unclear as to whether the appellant is asserting CUE as concerns the initial rating decision which granted service connection for his bipolar disorder, or a later final rating decision. Moreover, it is unclear whether this may be a claim of CUE in a Board decision. The appellant and the representative are encouraged to file the claim, with specificity, to the appropriate body to consider this claim. It is noted that there is no current Motion to the Board seeking CUE in any Board decision. This matter is referred to the RO to ensure the appellant and her representative are fully apprised as to the proper procedure for submitting a claim based on CUE as concerns an earlier, final rating decision.

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In a July 2002 submission, the veteran requested a hearing before the Board. A hearing was scheduled for January 2004. In a September 2003 statement, the veteran withdrew his request for a hearing before the Board and requested that his claim be decided on the evidence of record.

REMAND

At the outset, it is noted that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) have not been complied with in view of recent Court decisions. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, Nos. 345 F. 3d 1334 (Fed. Cir. 2003).

Additionally, there may be outstanding records which might serve as an informal claim for benefits. It has been indicated that the veteran was apparently treated either on a fee basis rate, or at a VA clinic since 1991. An attempt to obtain the fee basis examination folder, and the VA treatment folders should be undertaken. If the VA was ordering fee basis treatment, presumably there was some notice of the veteran's condition, and those records should be obtained to ascertain if there might be evidence of an earlier informal claim.

In view of the foregoing, this case is REMANDED for the following actions:

1. The RO should undertake steps to provide adequate notice of the VCAA to the veteran and the appellant. Such notice should comply with the Court precedents set forth above, and any other applicable legal precedents. As part of this notice, dates of VA

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treatment, facilities visited, and lists of fee basis examiners should be requested.

2. Thereafter, and whether information is received or not, the VA clinic from which the veteran received most treatment should be contacted. A request should be made for any fee basis exam reports or treatment records from 1988 to 1994. The attempts made to obtain the records should be documented. If there are no records available, the claims file should show that.

Thereafter, the matter should be reviewed by the RO. To the extent the benefits sought are not granted, the appellant, and the representative should be provided a supplemental statement of the case and afforded an opportunity to respond thereto. Thereafter, the matter should be returned to the Board for further appellate consideration, if in order. No action is required of the appellant until notified. The Board intimates no opinion as to the outcome in this case by the action taken herein.

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

This 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 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs

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to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.

	MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).

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381689413     031117    1282898    03-31860

DOCKET NO. 97-13 733                        DATE NOV 17 2003


On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to service connection for residuals of a right ankle strain.

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

3. Entitlement to service connection for sinusitis.

4. Entitlement to a rating in excess of 10 percent on appeal from the initial award of service connection for bursitis of both knees.

REPRESENTATION

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



ATTORNEY FOR THE BOARD

K. J. Alibrando, Counsel

INTRODUCTION

The veteran served on active duty from April 1983 to June 1993.

This case came to the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). The veteran canceled his request for a hearing before a member of the Board at the RO. The Board remanded the case in October 2001 for additional development of the record.

FINDING OF FACT

The veteran does not have a current diagnosis of a right ankle or a low back condition.

CONCLUSION OF LAW

Service connection for residuals of a right ankle strain and a low back condition is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2002).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), made significant changes to the VA's duty to notify and to assist claimants for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102,3.156, 3.159, and 3.326 (2002).

The VCAA prescribed that the amendments to 38 U.S.C. § 5107 are effective retroactively to claims filed and pending before the date of enactment. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). The United States Court of Appeals for the Federal Circuit has ruled that the retroactive effective date provision of the Act applies only to the amendments to 38 U.S.C.A. § 5107. See Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002); Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However, the VA regulations promulgated to implement the Act provide for the retroactive effect of the regulations, except as specified. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). Whereas VA regulations are binding on the Board, 38 C.F.R. § 20.101(a) (2002), the Board in this decision will apply the regulations implementing the VCAA as they pertain to the claim at issue.

The veteran's application for compensation or pension was received in January 1996. There is no issue as to provision of a form or instructions for applying for the benefits. 38 U.S.C.A. § 5102 (West 2002); 38 C.F.R. § 3.159(b)(2) (2002).

VA must, however, provide the claimant and the claimant's representative, if any, notice of required information and evidence not previously provided that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002). The United States Court of Appeals for Veterans Claims (Court) has held that both the statute and the regulation clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

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The RO has obtained the veteran's service medical records and copies of V A outpatient treatment records dated from December 1996 to July 2002. By letters dated in March 2001 and April 2002, the RO advised the veteran of the VCAA. The RO advised the veteran that it would help him obtain medical records, employment records, or record from other Federal agencies. He was advised that the VA would assist him in obtaining evidence necessary to establish entitlement to benefits. He was asked to identify both private and VA treatment records regarding the claimed conditions and was requested to submit signed release forms for any private records. Thus, the veteran was notified that he should provide information (who treated him) and the RO would get the records. He has not identified any additional VA treatment records pertinent to his claims.

VA has satisfied the duty to tell the veteran what information and evidence is needed to substantiate the claim and what evidence he must provide and what V A will obtain or request on his behalf.

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2002). Such assistance includes making every reasonable effort to obtain relevant records (including private and service medical records and those possessed by V A and other Federal agencies) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. 38 U.S.C.A. § 5103A(b) and (c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2002). As noted above, the RO has obtained the service medical records and VA treatment records. The veteran has not identified any additional pertinent VA or private treatment records with regard to the claims. There is no reasonable possibility further assistance might substantiate the claim. See 38 U.S.C.A. § 5103A(2) (West 2002); 38 C.F.R. § 3.159(d) (2002).

Assistance shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on

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the claim. 38 D.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2002). The veteran was afforded VA examinations in August 1996 and August 2002.

On appellate review, there are no areas in which further development is needed. The appellant was informed of the provisions of the VCAA and of the implementing regulations in the May 2003 supplemental statement of the case. The requirements of the law and regulations have been substantially met and the Board may proceed to consider the merits of the appeal.

II. Service connection

Service connection may be established for a disease or injury incurred in or aggravated by service, resulting in a current disability. 38 D.S.C.A. §§ 1110, 1131 (West 2002); 38 c.F.R. § 3.303 (2002). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002).

The veteran seeks service connection for residuals of a right ankle sprain and a low back disability. He asserts that he was treated for low back pain during service and experienced constant back pain during service.

The service medical records show treatment for a left ankle sprain during service. This is no medical evidence in the service medical records showing treatment for a right ankle injury or condition during active service. In June 1991, the veteran was seen for complaints of low back pain and the assessment was low back pain. He was seen in May 1992 for complaints of low back pain and the assessment was lumbosacral strain. On separation examination in April 1993, the veteran denied a history of recurrent back pain. The clinical evaluation of the spine and lower extremities was normal.

On VA examination in August 1996, the veteran reported a right ankle sprain in service. He reported pain in both sides of the right ankle. On examination, there

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was no swelling, deformity or instability of the right ankle. There was full range of motion of the right ankle with mild tenderness to palpation on the right ankle. Xrays of the right ankle were normal. The diagnoses included negative examination of the right ankle.

On VA examination in August 1996, the veteran reported that he had back pain after lifting a heavy object in 1986. He reported that the previous evening he had localized back pain but no pain at the time of the examination. Examination of the back showed that there were no postural abnormalities, fixed deformities, muscle spasm or tenderness on palpation. There was full range of motion of the lumbar spine with no objective evidence of pain on motion. Straight leg raising and Laseque sign were negative. The assessment was negative orthopedic lumbar spine on examination.

The postservice private medical records dated from December 1996 to November 2001 show treatment for complaints of low back pain in April and May 1997. A November 2001 shows that the veteran reported low back pain with prolonged walking. Musculoskeletal and neurological examination were essentially normal. The assessment included intermittent back pain. Those records do not show any complaints, finding or a diagnosis regarding the right ankle.

On V A examination in August 2002, the veteran reported treatment for a right ankle sprain during service. He indicated that he was seen at the VA in 1995 or 1996 for the first time about his ankle condition and that August 1996 x-rays of the right ankle were negative. He denied any pain of the right ankle. He reported that he injured his lower back during service lifting heavy equipment and received treatment during service. He indicated that after service, he received treatment for his back in 1995 or 1996. Following examination of the right ankle and the back, the diagnoses were negative musculoskeletal right ankle and low back examination.

In this case, there is no competent medical evidence of current diagnoses of a low back or right ankle condition. One of the basic requirements for service connection is evidence that tends to show a presently existing disability. The Court noted that, "Congress specifically limits entitlement for service-connected disease or injury to

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cases where such incidents have resulted in a disability...In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223,225 (1992). Moreover, a diagnosis of a condition must be made by competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Service connection for a low back disorder and residuals of a right ankle strain is not warranted as there is no competent medical evidence of a current disability for either of these claims - a requirement under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303.

The only other evidence in support of the veteran's claims is of his own contentions. However, there is no indication that the veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his statements regarding the claimed conditions are insufficient to establish a current diagnosis or medical causation.

The Board concludes that, in the absence of current diagnoses of right ankle or low back conditions, the preponderance of the evidence weighs against the claims for service connection for those conditions. The benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for residuals of a right ankle strain and a low back condition is denied.

(CONTINUED ON NEXT PAGE)

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REMAND

In March 2002, the RO denied entitlement to an annual clothing allowance. The veteran's notice of disagreement with that determination was received at the RO in August 2002. The RO has not yet issued a statement of the case on this issue. In a case in which a claimant has expressed timely disagreement in writing with a rating action of the RO, an appeal has been initiated, and the RO must issue a statement of the case, and the Board must remand that issue to the RO for that purpose. See Manlincon v. West, 12 Vet. App. 238 (1999).

The Board has reviewed the record and finds that additional development of the evidence with regard to the claims of service connection for sinusitis and an increased rating for the bilateral knee disorder is warranted.

The Board remanded the issue of service connection for sinusitis in October 2001 with instructions that the veteran be afforded an examination regarding the claimed sinusitis. It was requested that if a current sinus disability was found, that the examiner should state an opinion as to the likelihood that the disability was the result of the veteran's service. On examination in August 2002, the diagnosis included sinusitis and allergic rhinitis. The examiner did not state the requested opinion regarding the onset of the sinus disorders. A remand by the Court or the Board confers on the veteran or other claimant, as a matter oflaw, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the issue must be remanded for another VA examination which includes the requested medical opinion.

The veteran seeks a rating in excess of 10 percent for the initial award of service connection for bursitis of both knees. Since the August 1996 VA examination regarding the knees, the veteran has been treated for complaints of knee pain. MRI testing in November 2001 showed small right knee joint effusion. There are also notations of degenerative joint disease of the knees. The Board finds that an examination regarding the knee disability is needed to determine the current extent of the disorder.

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Accordingly, the case is remanded for the following:

1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002).

2. Contact the veteran and request him to furnish the names and addresses of all health care providers from whom he has received treatment for the service-connected bilateral knee disorder from July 2002 to the present. Consent forms for the release to the VA of any private medical records should be obtained from the veteran. Thereafter, the RO should obtain copies of all identified treatment records of the veteran which are not currently in the file, including both private and VA records and associate them with the claims folder.

3. After the above-mentioned records have been requested or obtained, afford the veteran a V A sinuses examination to determine onset of any current sinus disorder. The claims folder must be made available to the examiner for review before the examination. The examiner should set forth all current diagnoses pertaining to the sinuses and should state an opinion as to the likelihood that any currently found sinus disorder had its onset during active service.

4. Afford the veteran a VA orthopedic examination to determine the nature and extent of his bilateral knee disability. Such tests as the examiner deems necessary should be performed, including range of motion testing

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and x-ray studies. The claims folder should be made available to the examiner for review before the examination. The examiner should comment upon the effects of the veteran's service-connected bilateral knee disability on ordinary activity and on how the disability impairs him functionally. Range of motion testing and assessments of functional impairment due to pain on motion and use must be included. If there is functional impairment due to pain, an assessment of the degree of impairment should be provided. The examiner should describe whether pain significantly limits functional ability during flare-ups or when tl1e knees are used repeatedly.

5. Issue a statement of the case to the veteran and his representative on the claim for entitlement to an annual clothing allowance, which was denied in March 2002. Notify the veteran of the time limit within which he must respond with an adequate substantive appeal in order to secure appellate review of that issue by the Board. Thereafter, the case is to be returned to the Board only if a timely and adequate substantive appeal is filed.

6. When the above developments have been completed, the case should be reviewed by the RO. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue currently on appeal as well as a summary of the evidence received since the

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issuance of the last SSOC. An appropriate period of time should be allowed for response.

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

This 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 2002) (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. 8.43 and 38.02.

MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

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492542914     031017    944957    03-27893

DOCKET NO. 00-07 370                         DATE  OCT 17 2003

	On appeal from the
Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas


THE ISSUE

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

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

B.B. Jordan, Counsel



INTRODUCTION
The veteran had active military service from September 1966 to September 1968.
This appeal to the Board of Veterans' Appeals (Board) arises from an October 1999
rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In that determination, the RO denied service connection for bilateral hearing loss, chronic strain of the right ankle, a back disorder, residuals of a left forearm injury, tinnitus, and PTSD. The veteran appealed those issues.

In a personal hearing, the veteran withdrew the claim for service connection for a back disorder. In a rating action dated in October 2000, the RO granted service connection for bilateral hearing loss, chronic strain of the right ankle, residuals of a left forearm injury, and tinnitus. Therefore, those disorders are not subject to this appeal.

REMAND

During the pendancy of this appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which redefined VA's duty to assist, enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim, and eliminated the well-grounded-claim requirement. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107, note (Effective and Applicability Provisions) (West 2002).

The VCAA had not been enacted when the RO initially adjudicated the appellant's claim currently on appeal, and the claim has not been developed in accordance with the VCAA.

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The Board notes that the Federal Circuit in Disabled Veterans of America v. Secretary of Veterans Affairs invalidated the Board's ability to cure VCAA deficiencies. Disabled Veterans of America v. Secretary of Veterans Affairs, Disabled American Veterans v. Sec y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, a remand is required in this appeal so that additional development may be undertaken in order to fulfill the Department's duty to assist the veteran with his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2003).

The veteran asserts that he developed PTSD as a result of service in Vietnam. The veteran served in Republic of Vietnam Theatre of Operations from March 3, 1967, to March 5, 1968. Service personnel records reflect that veteran's military occupational specialty was that of a canooner and that he was involved in the Vietnam Counteroffensive Phase II Campaign.

In March 1967, the veteran was assigned to the Battery D 3rd Battalion, 13th Artillery. The veteran indicated that in March 1967 his base camp was hit with heavy mortar attack. The veteran indicated that the camp was Chu Chi in Tay Ninh, Black Virgin Mountain on the Cambodian River.

In August 1967, the veteran was also assigned to the A Battery, 2nd Battalion, 40th Arty, 199th Infantry Brigade. The veteran indicated that mission of the camp was to support and protect Saigon and surrounding compound. The veteran stated that his camp arrived right after the TET Offensive and that they were stationed at Duc Lap by the Saigon River.

In October 2000, the RO contacted the United States Services Center for Research of Unit Records (USASCRUR) for record of the unit history of the veteran's units in Vietnam. The USASCRUR responded in December 2000 that the unit histories were handled by the National Personnel Records Center (NPRC). However, the record does not reflect that an effort has been made to obtain a copy of the veteran's unit histories from the NPRC.

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In addition, the veteran indicated in a stressor statement that six months after he had been assigned to the 25th infantry a friend named Santose was killed. The Board notes that this is insufficient information for verification; however, the veteran has not been asked to provide more detailed information.

Accordingly, the case is remanded to the RO for the following:

1. The RO must review the claims file and ensure that all notification and the development required by the VCAA are completed. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2002). In particular, the RO should ensure that the notification requirements and development procedures contained in Sections 3 and 4 of the Act (38 V.S.C. §§ 5102,5103, 5103A, and 5107) are fully complied with and satisfied. In this regard, the RO should contact the veteran and inform him of the types of documentation that can serve as evidence in regard to his current claims.

2. The RO should contact the NPRC and request the unit history of the Battery D 3rd Battalion, 13th Artillery from March 1967 to August 1967, and A Battery, 2nd Battalion, 40th Artillery, 199th Light Infantry from August 1967 to March 1968.

3. The RO should afford the veteran the opportunity to submit additional evidence and information in support of his claim for service connection for PTSD, to include the full name of "Santose"and the date in which he was killed. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted.

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4. Thereafter, if the veteran provides more specific information, the RO should contact the necessary sources for corroboration of the alleged stressor.

5. Thereafter, the RO should review the claims file and ensure that all necessary notice and development has been undertaken. If any development is incomplete, undertake appropriate corrective action. Stegall v. West, 11 Vet. App. 268 (1998).

6. Then, the RO should readjudicate the veteran's claim for service connection for PTSD.

7. If the benefit sought on appeal is not granted, the RO should issue a Supplemental Statement of the Case and provide the veteran and his representative with an appropriate opportunity to respond.

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

This 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 2002) (Historical and Statutory Notes). In

- 5 



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. 8.43 and 38.02.

MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

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027305867     031023    1022800    03-28643

DOCKET NO. 00-20 971A                       DATE OCT 23 2003

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

THE ISSUES

1. Entitlement to an effective date earlier than January 7, 1994, for the grant of service connection for post-traumatic stress disorder (PTSD).

2. Entitlement to the assignment of an initial higher disability evaluation for PTSD, evaluated as 50 percent disabling between January 7, 1994 and May 11, 1998 and currently evaluated as 70 percent disabling.

REPRESENTATION

Appellant represented by: Kenneth B. Mason, Attorney

ATTORNEY FOR THE BOARD

A.D. Jackson, Counsel

REMAND

The veteran had active service from July 1964 until January 1971.

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

Subsequent to the statement of the cases issued in this case, additional evidence was received into the record. Also, in March 2003 the Board notified the veteran of the Veterans Claims Assistance Act of2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 51 07 (West. 2002). However, the United States Court of Appeals for the Federal Circuit has recently invalidated the regulations, which empowered the Board to issue written notification of the VCAA and to consider additional evidence without prior RO review in the absence of a waiver of such review by the veteran or his representation. Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1,2003).

It is further noted that in a decision promulgated on September 22,2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, 7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F .R. § 3 .159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F .3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R.
§ 19.9). The court found that the 30-day period provided in § 3.l59(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided.

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In an August 2000 rating action, the RO granted a total rating based on service-connected disabilities (TDIU), effective May 11, 1998. The Board construes a faxed statement from the appellant dated in October 2000, which references an earlier effective date for the assignment of a TDIU as a notice of disagreement to the August 2000 rating action. Accordingly, a statement of the case is required. Manlincon v. West, 12 Vet. App. 328 (1999).

Accordingly, the case is remanded for the following actions:

1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102,5103, and 5103A (West 2002) are fully complied with and satisfied). In addition, the RO must ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 51 03A, (West 2002), and any other applicable legal precedent. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

2. The RO should furnish the appellant a statement of the case concerning the issue regarding the assignment of an earlier effective date for the grant of a TDIU. The appellant should also be informed of the requirements necessary to perfect his appeal regarding the assignment of an earlier effective date for the grant of a TDIU. The RO is informed that this issue is not before the Board for appellate consideration until timely perfected.

3. The RO is requested to readjudicate the veteran's claims with consideration of all the evidence added to the record since the last statement of the case. If the benefit sought is not granted, the RO should furnish the

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veteran and his representative a supplemental statement of the case, containing notice of the relevant action taken on his claims since the last statement of the case. An appropriate period of time should be allowed for response.

By this remand, the Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified.

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

This 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 2002) (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.

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

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421724386    031231    1067509    03-36733

DOCKET NO. 02-17 257                        DATE DEC 31 2003


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

THE ISSUES.

1. Entitlement to service connection for degenerative disc disease, C5-6, with right 	radiculopathy.

2. Entitlement to service connection for hallux rigidus of the right great toe.

3. Entitlement to an increased (compensable) evaluation for hallux rigidus of the left great toe.

4. Entitlement to an increased (compensable) evaluation for status post osteotomy of the third and fourth metatarsals of the left foot.

REPRESENTATION

Appellant represented by: Disabled American Veterans



WITNESS AT HEARING ON APPEAL

 Appellant

I
ATTORNEY FOR THE BOARD

James A. Frost, Counsel

INTRODUCTION

The veteran had a period of honorable service from March 9, 1976, to August 17,
1992, and a period of service which has been found to have been dishonorable from August 18, 1992, to August 20, 1999.

This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision
in July 2001 by the Chicago, Illinois, Regional Office,(RO) of the Department of
Veterans Affairs (VA).

On May 14,2003, the veteran appeared and testified at a personal hearing before the undersigned Veterans' Law Judge at the RO. A transcript of that hearing is of record.

This appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part.

REMAND

On November 9,2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits and provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence

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necessary to substantiate the claimant's claim for a benefit under a law administered by VA. The VCAA also provides that VA shall notify the claimant of any information, and any medical or lay evidence not previously provided to VA which is necessary to substantiate the claim and whether VA or the claimant is expected to obtain and such evidence. See Veterans Claims Assistance Act of 2000, U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002), Charles v. Principi, 16 Vet. App. 370 (2002).

With regard to the issue of entitlement to service connection for degenerative disc disease, C5-6, with right radiculopathy, the veteran's service medical records for his period of honorable service ending August 17, 1992, are negative for findings related to the cervical spine. However, at the hearing in May 2003, the veteran's representative pointed out that the service medical records for the veteran's period of, dishonorable service contain a report by a radiologist that X-rays of the cervical spine on October 23, 1992, showed advanced degenerative arthritis at C5-6 accompanied by disc space narrowing and right sided neural foraminal encroachment. The representative contends that arthritis of the .veteran's cervical spine had its onset during his period of honorable service, and he requests that a VA physician review the report of the October 1992 X-rays of the cervical spine and offer an opinion on the question of the likelihood that such was the case. In order to fulfill VA's duty to assist the veteran in the development of facts pertinent to his claim, the Board will accede to the veteran's representative's request, and this case will be remanded for that purpose.

With regard to the issue of entitlement to an increased (compensable) evaluation for status post osteotomy of the third and fourth metatarsals of the left foot, at the VA joints examination in December 1998, the pertinent diagnosis was status following surgery left third and fourth toes to treat plantar warts, with good results and no objective abnormalities and no disability noted. However, at the hearing in May 2003, the veteran testified that he had impairment of the function of the third and fourth toes of his left foot, including soreness of the left fourth toe. The United States Court of Appeals for Veterans Claims has held that, in a case in which a veteran complained of increased hearing loss 2 years after his last audiological

- 3 

examination, VA should have scheduled another examination. See Snuffer v. Gober, 10 Vet. App. 400,.403 (1997). Therefore, the Board finds that, in the instant  case, the veteran should be afforded an orthopedic examination of his left foot, 	which may be arranged while this case is in remand status.

The Board notes that, although the RO has notified the veteran in an August 2002 Statement of the Case of the laws and regulations concerning his service connection and increased rating claims, the veteran has not been notified by VA in specific terms as to what evidence would be needed to substantiate his claims of entitlement to service connection for hallux rigidus of the right great toe and to an increased (compensable) evaluation for hallux rigidus of the left great toe and whether VA or the claimant is expected to attempt to obtain and submit such evidence. In Disabled American Veterans y. Secretary of Veterans Affairs, Nos. 02-7304, -7305, 7316  (Fed. Cir. May 1, 2003), the United States Courj of Appeals for the Federal Circuit held that 38 C.F.R. § 19.9(a)(2)(ii), which requires the Board "to provide the notice required by 38 U.S.C. [§] 5103(a)" and that the claimant has "not less than 3b days to respond to the notice" is invalid because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. As matters stand, the record has a procedural defect in the notice 'required under the VCAA which may no longer be cured by the Board. Accordingly, the Board must remand the issues of entitlement to service connection for hallux rigidus of the right great toe and to an increased (compensable) evaluation for hallux rigidus of the left great toe in order 	to satisfy VA's duty to notify the appellant.

Under the circumstances, this case is REMANDED for the following:

1. An attempt should be made to obtain copies of all records of treatment of the veteran's left foot since July 2002 at the VA Medical Center, North Chicago, Illinois.

2. Arrangements should be made for the veteran to undergo an examination of his cervical spine and left foot by a specialist in orthopedics. It is imperative that the examiner review the pertinent medical records in the claims file and a copy of this REMAND. The examiner should respond to

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the following question: Is it more likely (a greater than 50 percent probability), less likely (a less than 50 percent probability), or at least as likely as not ( 50 percent probability) that the veteran developed degenerative joint disease and/or degenerative disc disease of the cervical spine during his period of honorable service from March 9, 1976, to August 17, 1992? The examiner should also determine whether the veteran has any impairment of the functioning of the left foot related to postoperative osteotomy of the third and fourth metatarsals of the left foot. The examiner should report in detail any objective findings of disability of the left foot related to postoperative osteotomy of the third and fourth metatarsals of the left foot.

3. The appellant should be notified, pursuant to the VCAA, of any information, and any medical or lay evidence not previously provided to VA, which is necessary to substantiate his claims of entitlement to service connection for hallux rigidus of the right great toe and to an increased (compensable) evaluation for hallux rigidus of the left great toe and whether VA or the claimant is expected to obtain any such evidence.

4. The appellant should be allowed the period of time provided by law for a response.

Following completion of these actions, the evidence should be reviewed and a determination should be made as to whether the veteran's claims may now be granted. If the decision remains adverse to the veteran on any issue, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to assist the veteran and to comply with the notice provisions of the VCAA. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice.

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

F. Judge Flowers
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute al decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).

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023270947     031104    792282    03-30188


DOCKET NO. 98-06 984                        DATE NOV 04 2003

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1. Entitlement to service connection for facial scars.

2. Entitlement to service connection for nerve damage.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel




INTRODUCTION

The veteran had active military service from May 1962 to May 1964, when he was transferred to an Army Reserve Control Group. As pertinent to the present appeal, he also served on a period of Army Reserve active duty for training (ADT) from
November 1, 1965, to December 14, 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The veteran had requested a Travel Board hearing, which was scheduled for September 2003. The veteran cancelled that hearing, and a September 2003 report of contact in the file indicates that he did not wish to reschedule it.

The Board finds that additional evidentiary development is warranted with respect to the claim of entitlement to service connection for nerve damage, and accordingly that claim is remanded, as will be further explained herein.

FINDINGS OF FACT

1. The veteran was involved in an automobile accident in December 1965 while on ADT, resulting in documented injuries including a fractured neck and a healed scar of the left temporal area.

2. Current medical evidence reveals two scars in the area of the left eyebrow, described as well-healed, non-tender and demonstrating very minimal deformity.

CONCLUSION OF LAW

Giving the veteran the benefit of the doubt, service connection for facial scarring over the left eye is warranted. 38 U.S.C.A. § 101, 106, 1110, 1131,5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2002).

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	REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Preliminary  Matters

In November 2000, the President signed into law the Veterans Claims Assistance Act of2000 (VCAA). Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308

(1991). In this case, the veteran was notified of the VCAA provisions in
correspondence from the RO dated in May 2003.

	The Board is satisfied that all relevant facts regarding the issue decided below have
been properly developed and no further assistance to the veteran is required in order
	to comply with the duty to notify and assist. See 38 U.S.C.A. § 5103, 5103A, 5107
(West 2002); 38 C.F.R. § 3.159 (2003). In any event, based upon the favorable decision discussed below, any failure in VA's duty to notify and assist the veteran regarding this claim is moot. See Bernard v._Brown, 4 Vet. App. 384 (1993).

I
II. Factual Background

Service medical records from the veteran's period of active duty are negative for
any indication of a head or facial injury, scarring of the face, or any neurological
symptomatology in the facial/eye area.

The ADT records show that the veteran was enroute home from 45 days of ADT
when his car ran off an embankment on December 14, 1965. Initially, he was
treated for a fractured neck at a private hospital, during which time he was in head halter traction for 5 weeks and then placed in a 4-poster brace for 2 weeks. Thereafter, he was transferred to an Army Hospital, where he stayed from February to May 1966. The discharge physical examination revealed painless, limited range of motion of the neck, and a healed scar of the left temporal area. Neurological examination was entirely within normal limits. A diagnosis of fracture, odontoid

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process of C-2, incurred in the line of duty, treated and completely healed, was made. A July 1966 Medical Board report reflects a recommendation that the veteran be restored to full duty.

When he filed his service connection claims in August 1997 for a neck injury, facial scars (claimed as a laceration near the left eye), and nerve damage, all claimed as a result of the December 1965 accident, the veteran also mentioned that he had recently been involved in another accident, which left him totally disabled. In a December 1997 rating action, service connection for residuals of a neck fracture was granted. Claims for facial scars and nerve damage were denied, as it was determined that the records related to the in-service accident showed no evidence of facial injury or scarring.

A private emergency room report dated in June 1997 reflects that the veteran was involved in an altercation during which he was struck multiple times with a metal chair, causing injuries to the ribs and chest and multiple abrasions to the arms, legs, face, chest, abdomen, and back. Diagnoses of subcutaneous emphysema of the left chest wall, secondary to trauma, and contusions and abrasions of the chest wall, back and face, were made.

The file also contains an October 1998 neropsychological testing report indicating that seven months previously (or as early as 1996), the veteran had slipped on the walkway at home and hit the back of his head, sustaining a traumatic brain injury, due to which he was reportedly in a coma for 12 days. The June 1997 incident as well as the 1965 motor vehicle accident, causing a cervical injury and facial lacerations, were also noted. The examiner's impression was that the veteran demonstrated mild to moderate cognitive deficits, likely related to multiple traumatic events (remote motor vehicle accident, recent fall with head injury, and recent assault).

A VA examination was conducted in January 1999, and the veteran provided an account of his 1965 accident and resulting injuries. . He complained of symptoms related to the left eye, including headaches and involuntary twitching of the muscles, occurring one to two years after the accident. The veteran noted that

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yearly eye examinations had not detected any problems, and that there had been no decline in visual acuity. Physical examination revealed a healed laceration over the left lateral eyebrow, consisting of two scars, one of which was 1 % inches long and one which was 1 inch long. The scars were described as well-healed, not exhibiting palpable tenderness, and having minimal deformity. The examination report included color photographs of the face; showing the scars. Diagnoses of head trauma resulting from motor vehicle accident, with lacerations sustained to the left lateral orbit, repaired; history of concussion secondary to vehicular crash; and leg lacerations sustained in vehicular crash were made. The VA examiner opined that it appeared likely that the scarring of the veteran's face and lower extremity were caused by the trauma. The examiner did however, note a history of other accidents and assaults, and indicated that he had no records from the 1965 accident to authenticate the exact nature or surrounding circumstances leading to the veteran's injuries, as reported by him.

Two lay statements were submitted in February 1999, attesting that the veteran had sustained an injury to the left eye as a result of the 1965 accident.
V A medical records dated from 1998 to 2003  are also on file, but are not pertinent to the disability claims on appeal.

III. Pertinent Law or Regulations
In general, applicable laws and regulations provide that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ADT). 38 U.S.C.A. §§ 101(24), 106; 38 C.F.R. § 3.6. Active duty for training includes full time duty performed by Reservists for training purposes. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c).

That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet.

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App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

IV.  Analysis

In order for the claimant to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence (or in certain circumstances, lay evidence) of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247,253 (1999); see also Pond v. West, 12 Vet App. 341,346 (1999).

A review of the record reflects that a VA examination for facial scars was conducted in January 1999, at which time the veteran gave a history of a motor vehicle accident during ADT, resulting in scarring over the left eye. The veteran also reported sustaining post-service head trauma as a result of an assault and a fall, approximately between 1996 and 1998. The VA examination showed evidence of two scars over the left eye, described as well-healed, non-tender, and productive of minimal deformity. Color photographs taken at that time do show some minimal evidence of scarring over the left eye. A diagnosis indicated head trauma resulting from a motor vehicle accident, with lacerations over the left lateral orbit, repaired. Accordingly, the Board concludes that in-service incurrence of the currently claimed disorder, facial scarring over the left eye, is established.

Records from the veteran's period of ADT document a vehicle accident in December 1965, resulting in injuries including a fractured neck and facial lacerations. The RO has repeatedly denied the claim for facial scarring, explaining that, among other reasons, there was no indication of facial scarring in the 1965 medical records pertaining to the accident. However, a discharge physical examination report dated in May 1966, following the veteran's hospitalization for injuries due to his 1965 accident; clearly documents a healed scar of the left

- 6 


temporal area. Accordingly, there is evidence that a scar over the left eye was in fact sustained as a result of the 1965 accident.

The critical question therefore, is whether an etiological nexus exists between the scarring noted in 1966 and the currently manifested scar. Complicating the matter is the fact that the veteran has sustained post-service head trauma during the 1990's due to an assault and a fall. The V A examiner was asked to opine as to the relationship between the currently diagnosed scarring and the 1965 accident, and he opined that it appeared likely that the scarring of the veteran's face was due to the 1965 accident. However, the examiner also indicated that he did not have the records related to the 1965 accident, and therefore the opinion relied on the veteran's reported history.

Given the fact that scarring over the left eye was documented in the veteran's ADT records and is currently shown, and given the VA examiner's opinion, which was made based on the veteran's largely accurate report of the 1965 accident, it is reasonable to conclude that an etiological link may exist. The Board recognizes that the RO, in considering the evidence of record, did not discuss the 1965 findings as to facial scarring. Even if those findings had been addressed, it was understandable
and not necessarily erroneous that the RO, considering the evidence of serious post-service head and facial trauma, determined that the present facial scarring was not of in-service origin.

I
Nevertheless, the Board, with all due respect for the RO's decision, finds on de novo review that that the competent and probative evidence is at least in relative equipoise as to whether or not the veteran's currently manifested facial scarring over the left eye was incurred in December 1965 while on ADT. Having resolved all reasonable doubt in favor of the appellant we conclude that service connection is warranted for facial scarring over the left eye. The benefit sought on appeal may accordingly be granted. 

ORDER
I
Entitlement to service connection for scarring over the left eye is granted.
	I

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REMAND
The Board notes that the record as it stands current1y is inadequate for the purpose
of rendering an informed decision as to the claim of entitlement to service connection for nerve damage. Where the re9prd before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1998).
The evidence clearly establishes that, in December 1965, while the veteran was on ADT, he was involved in an automobile accident causing a fractured neck and facial scarring. He is now claiming service connection for nerve damage as a result of those injuries. When he was examined in 1966, neurological examination was entirely within normal limits. When examined by VA in 1999, the veteran complained of headaches as well as of involuntary twitching of the muscles near the
I
eye and reported that these symptoms began 1-2 years following the accident, but a
neurological evaluation was not conducted at that time. The file shows that the
veteran has sustained post-service head trauma twice during the 1990's. He
underwent private neurological testing in October 1998, at which time the
impression was that he demonstrated mild to moderate cognitive deficits, likely
related to multiple traumatic events (remote motor vehicle accident, recent fall with
head injury, and recent assault). Essentially, the veteran's claimed neurological
disorder has not been clearly identified or diagnosed, nor has its etiology been
established. Accordingly, the Board believes that a VA examination is required to
address these matters.

Review of the file further reflects that additional pertinent evidence maybe
available in this case. Initially, the record reflects that the veteran is in receipt of
I
benefits from the Social Security Administration. Neither the decision granting
those benefits nor the medical evidence upon which that decision was based are on
file, and these records will be requested. In addition, the file reflects that the
veteran sustained a brain injury due to a fall which occurred sometime between
1996 and 1998. It appears that he was hospitalized and may also have been in a 

- 8 
coma for a short time due to that accident. The veteran will be requested to provide
dates and treatment information related to the! incident.
The Board also points out that there was a change in the law during the course of
this appeal with the enactment of the Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C. §§ 5102,5103, 5103!A, 5107 (West 2002). This
liberalizing law is applicable to this appeal.

To implement the provisions of the law, VA 'as promulgated regulations.
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)J(2003). The VCAA and
implementing regulations essentially eliminate the concept of the well-grounded
claim. 38 U.S.C.A. § 5107(a) (West 2002); 318 C.F.R. § 3.102. They also include
an enhanced duty on the part of V A to notify a claimant of the information and evidence needed to substantiate a claim. 38 J.S.C.A. § 5103 (West 2002);
38 C.F.R. § 3.159(b). In addition, the regulations define the obligation of V A with
respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159(c).

Subsequently, in Disabled American Veterans v. Secretary of Veterans Affairs
(DA V), 327 F.3d 1339, (Fed. Cir. 2003), the United States Court of Appeals for the
I
Federal Circuit (Federal Circuit) determined that 38 C.F.R. § 19.9(a)(2) was
inconsistent with 38 U.S.C. § 7104(a). The Federal Circuit invalidated 38 C.F.R.
I
§ 19.9(a)(2) because, in conjunction with 38  C.F.R. § 20.1304, it allowed the Board
to consider additional evidence without having to remand the case to the agency of
original jurisdiction (AOJ) for initial consideration and without having to obtain the
appellant's waiver. The Federal Circuit also determined that 38 C.F.R.
§ 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," was
contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit
	I
evidence, and invalidated 38C.F.R. § 19.9(a)(2)(ii).
	I

Additionally, iu a decision promulgated in September 2003, Paralyzed Veterans of
America v. Secretary of Veterans Affairs, No. 102-7007 (Fed. Cir. Sept. 22,2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. § 3.15,19(b)(1) as inconsistent with 38


- 9 



U.SC .§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, supra, which had reviewed a related Board regulation, 38 C.F.R. § 19.9. The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. In this case, a VCAA letter which refers to the 30-day response period was issued in May 2003. Therefore, because this case is being remanded for additional development, the RO must take this opportunity to inform the veteran of the requisite time allowed to respond to a VCAA notice.

Thus, the Board requests that the RO accomplish the following directives so as to ensure an equitable and just determination.

1. The RO should inform the veteran by letter of his right to submit new evidence, describe the type of evidence needed to substantiate his claim, and provide information as to the relative duties of the VA and the veteran in obtaining relevant evidence. This letter should also contain a summary of the provisions contained in 38 U.S.C.A. §§ 5103 and 5103A.

2. The RO should then review the claims file to ensure that all VCAA notice obligations have been satisfied in accordance with the decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, and any other applicable legal authority.

3. The RO should contact the veteran and request information (dates and treatment sources) pertaining to his fall and subsequent traumatic brain injury sustained sometime between 1996 and 1998, as referred to in the October 1998 neuropsychiatric testing report of

- 10



Dr. Stotts. After securing the necessary releases, the RO should attempt to obtain any records so identified.


	4. The RO should contact the Social Security
Administration and obtain a copy of the decision to
grant benefits to the veteran, as well as any medical
records and evidence upon which that decision was based.

I
5. Thereafter, the RO should schedule a VA neurological examination to address the veteran's
claimed nerve damage in the area of the cervical spine
and left eye, and inform the veteran of the date, time,
	and place of the examination.

The examiner should initially identify the veteran's
I
reported neurological symptoms and diagnose any
currently manifested neurological disorder. The
I
examiner should then provide an opinion in conjunction
with any/all currently manifested disorder(s) as to whether it is at least as likely as not (i.e.. to at least a 5050 degree of probability) that: (b) this is etiologically related to the accident which occurred in December 1965, while the veteran was on active duty for training;
or (b) this is secondary to the service-connected scarring over the left eye; or whether either such relationship is unlikely (i.e.. less than a 50-50 probability). The examiner should be advised that the records reflect that the veteran has also sustained post-service head trauma during the 1990's, resulting from an assault and a fall. Any studies or tests that are needed to make a
determination should be conducted accordingly. A written rationale and bases should support all




- 11 



conclusions. It is critical that the claims folder be made available to the examiner prior to the review.

6. The RO should review the record post-examination and ensure that all questions posed in this REMAND have been adequately addressed. The report should be returned for completion if any inadequacies are found. If the examiner recommends further development (e.g., a request to obtain additional medical records or conduct additional tests), such development should also be accomplished. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

7. After ensuring that all requested development has been completed, the RO should readjudicate the veteran's claims as noted herein. If the determination of this claim remains unfavorable to the veteran, the RO must issue a Supplemental Statement of the Case (SSOC) and provide him a reasonable period of time in which to respond before this case is returned to the Board.

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

This 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 2002) (Historical and Statutory Notes). In

- 12 



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. 8.43 and 38.02.

ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals

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356408912     031008    748771    03-25729

DOCKET NO. 97-22 493                        DATE OCT 08 2003

		On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Bradley Cook, Associate Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from December 1971 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an Apri1 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran has relocated and his claim is now under the jurisdiction of the Waco, Texas RO. In December 2002, the Board undertook additional development of the evidence under 38 C.F .R. § 19.9(a)(2).

REMAND

In Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DA V), 327 F.3d 1339, (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that 38 C.F.R. § 19.9(a)(2) was inconsistent with 38 U.S.C. § 7104(a). The Federal Circuit invalidated 38 C.F.R. § 19.9(a)(2) because, in conjunction with 38 C.F.R. § 20.1304, it allowed the Board to consider additional evidence without having to remand the case to the agency of original
jurisdiction (AOJ) for initial consideration and without having to obtain the appellant's waiver. The Federal Circuit also determined that 38 C.F.R. § 19.9(a)(2)(ii), which provides "no less than 30 days to respond to notice," was contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence, and invalidated 38 C.F.R. § 19.9(a)(2)(ii).

The development by the Board included a VA examination to determine whether the veteran's bilateral hearing loss is related to service or noise exposure therein. Such examination was conducted in April 2003. The examination report has not been considered by the RO, and the appellant has not waived initial AOJ consideration of this evidence. The Board further notes upon preliminary review that the examination report is not wholly responsive to the development request by the Board and infringes on an adjudicatory function in that it concludes that "this is not a service-connected hearing loss" rather than explaining the rationale why the

- 2 



veteran's hearing loss is or is not related to his noise exposure in service (and, per the Board's development request, whether his tinnitus is related to service).

Accordingly, the Board now has no recourse but to REMAND the case to the RO for the following:

1. Make arrangements with the appropriate VA medical facility for the veteran to be afforded an examination by an otolaryngologist to determine whether his hearing loss and/or tinnitus are related to service. Provide the veteran's claim file to the examiner for review in conjunction with the examination. The examiner should review the veteran's entire claim file, note his history of noise exposure (working as a diesel mechanic) in service, and provide a medical opinion as to whether it is at least as likely as not that any current hearing loss (and/or tinnitus) is related to the noise exposure in service. The examiner must explain the rationale for any opinion given.

2. The RO should readjudicate the claim in light of the evidence added to the record since the Supplemental Statement of the Case (SSOC) in March 2002. If the claim remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified.

The purposes of this remand are to ensure compliance with the mandates of the Federal Circuit in the above-cited decision, and to assist the appellant in the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v.

- 3 




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 for additional development or other appropriate action must be handled in an expeditious manner.

George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

-4



466803539     031124   1161799    03-32874

DOCKET NO. 92-55 152                        DATE NOV 24 2003

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to a total disability rating based upon individual unemployability due solely to the veteran's service-connected disabilities (TDIU).

	..
	REPRESENTATION 
Appellant represented by: Jeffrey J. Wood, Attorney At Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

 John R. Pagano, Counsel

INTRODUCTION

The veteran had active military service from August 1988 to July 1990.

This matter arises from an April 1998 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the case later was transferred to the VARO in Houston, Texas. Following compliance with the procedural requirements set forth in 38 U.S.C.A. § 7105 (West 2002), the case was forwarded to the Board of Veterans' Appeals (Board) for appellate consideration.

In January 2000, the Board remanded the case to the RO to ensure the adequacy of' the record and for further adjudication. That was accomplished, and the case was returned to the Board for further appellate consideration.

REMAND

By letter dated December 23, 2002, the Board notified the veteran of his rights and responsibilities under the Veterans' Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (VCAA). However, by decision promulgated on September 22,2003, the United States Court of Appeals for the Federal Circuit invalidated the standard letter that the Board had sent to the appellant regarding the VCAA. See Paralyzed Veterans of America v. Secretary of Veterans Affairs,
No. 02-7007 (Fed. Cir. Sept. 22, 2003). The Court reached a conclusion similar to that reached in Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation,
38 C.F.R. § 19.9). The Court found that the 30-day period provided in 38 C.F.R. § 3.159(b)(l) to respond to a VCAA notice letter was misleading and detrimental to

- 2

claimants whose claims are prematurely denied short of the statutory one-year period provided for response. As such, the RO must take this opportunity to inform
 the appellant that notwithstanding the information previously provided, one full year is allowed to respond to a VCAA notice letter under the provisions of
38 C.F.R. § 5I03(a) (2003).

Accordingly, this case is REMANDED to the RO for action as follows:

1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. The appellant and his attorney should be specifically told of the information or evidence needed to substantiate his claim, if any, and of the one year period allowed for response. See 38 U.S.C.A. § 5103(b) (West 2002).

2. With any necessary authorization from the appellant, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant with regard to his employability which have not been previously secured.

3. Once the foregoing has been accomplished, the RO should again review the claim. If the benefit sought on appeal remains denied, both the veteran and his attorney should be furnished a supplemental statement of the case. They should also be given the appropriate time period in which to respond.

Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to

- 3 
.

ensure that the appellant has been accorded due process of law. The appellant need take no action unless so informed. By this REMAND, the Board intimates no opinion regarding the final disposition of the claim. The appellant has the right to submit additional evidence and argument on matters that the Board has remanded to the RO. See 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. 1. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (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.

WARREN W. RICE, JR
	Veterans Law Judge, Board of Veterans' Appeals

Under 38 D.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

- 4 





030293717     031201    1176702    03-33444

DOCKET NO. 99-06 958                        DATE DEC 01 2003

On appeal from the
Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas

THE ISSUE

Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD).

Wl1NESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jeffrey J. Schueler, Counsel


REMAND

The veteran had active duty from February 1979 to April 1989.

There has been a significant change in the law during the pendency of this appeal. On November 9,2000, the Veterans Claims Assistance Act of2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5102, 5103, 5103A, 5107 (West 2002)) became law. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, § 7(a), 114 Stat. at 20992100; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991).

The Board remanded this matter to the RO in April 2001, in part for compliance with the notification and development requirements of the VCAA. Several court decisions since then have affected the actions VA should take to comply with the VCAA, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002); Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003). The record shows that the RO requested additional information of the appellant in October 2001. The appellant has not, however, been provided with information specifically required under the VCAA and the caselaw interpreting that statute. A remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998).

Moreover, in a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22,2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for

- 2 

response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice.

Accordingly, this case is REMANDED for the following:

1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. The RO should also make sure that all development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) is fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002).

2. After the development requested above has been completed, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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

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

- 3 



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 2002) (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.

MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).

-4




051602881     031205    1194794    03-34003

DOCKET NO. 95-20 420                        DATE  DEC 05 2003

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

THE ISSUES

1. Entitlement to service connection for right foot disorder.

2. Entitlement to service connection for right ankle disorder.

Entitlement to an increased rating for follicular dermatitis and eczema, currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by: Mark R. Lippman, Attorney

WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The veteran served on active duty from January 1980 to August 1988.

This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).

This case was previously before the Board in May 2000. At that time, Board determined that new and material evidence had been submitted to reopen a claim for service connection for disabilities involving the right foot, knee and ankle. The Board also determined that these claims were well grounded and remand these issues to the RO for further development.

Also, in the May 2000 decision the Board denied the veteran's claims for service connection for a low back disorder and disabilities of the left foot, knee and ankle. Since that time, there has been a significant change in the law. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. This law redefined the obligations of V A with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim. Accordingly, these issues are referred to the RO for appropriate action.

In October 2001, the Board denied the appellant's claim for an increased rating for
follicular dermatitis and eczema and service connection for right foot and ankle disorders. The Board granted service connection for a right knee disorder. The appellant appealed the Board's denial to the United States Court of Appeals for

-2



Veterans Claims (Court). The Board's decision as to service connection for right foot and ankle disorders and an increased rating for follicular dermatitis and eczema was vacated pursuant to a December 2002 Order, following a Joint Motion for Remand and to Stay Further Proceedings. The parties requested that the Court vacate the Board's October 2001 decision and remand the matter. The Court granted the joint motion and remanded the case to the Board.

REMAND

The Joint Motion for Vacate and Remand of the Board's October 2001 decision was based in part on the fact that the VA failed to have the veteran's skin examined during its active stage. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The record shows that the veteran has been receiving treatment at a VA facility. Additionally, the Board finds that a current examination of the right ankle and foot would be of assistance in adjudicating this claim.

In a decision promulgated on September 22,2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.c.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response.

Accordingly, the case is REMANDED for the following:

1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as

- 3 



well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

2. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to treatment for the disabilities in issue not previously submitted covering the period from December 1999 to the present.

3. A VA examination should be conducted by an orthopedist to determine the nature, severity, and etiology of any disabilities involving the right foot and ankle. In addition to x-rays, any other testing deemed necessary should be performed. The claims folder must be made available to the examiner in conjunction with the examination and the examiner is requested to indicate in the report that the claims folder was reviewed. If disabilities of the right ankle and/or foot are diagnosed it is requested that the examiner render an opinion as to whether it is as likely as not that the right ankle and/or foot disorders diagnosed are related to service. Request the examiner to comment on the March 6, 2000 medical statement Dr. Barry M. Tuvel. A complete rational for any opinion expressed should be included in the report.

4. The RO should schedule the veteran for an examination by a dermatologist to ascertain the severity of her service connected skin disorders. The RO should take the appropriate action to have the examination scheduled for a time when there is a flare-up of the skin disorders. All indicated studies, including color

-4



photographs, should be undertaken as appropriate. The claims folder should be made available for review in connection with this examination.

5. Thereafter, the RO should readjudicate the issues on appeal. If the determination remains unfavorable to the veteran, she should be provided with a supplemental
statement of the case (SSOC) and an opportunity to respond.

Thereafter the case should be returned to the Board for further appellate consideration.

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

This 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 2002) (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. 8.43 and 38.02.

ROBERT P. REGAM
Veterans Law Judge, Board of Veterans' Appeals

- 5 



Under 38 D.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).

-6



029410893     031117    1225429    03-31848

DOCKET NO. 00-10 160                        DATE NOV 17 2003

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines

THE ISSUE

Entitlement to Department of Veterans Affairs (VA) death benefits beyond age 23.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

M.Cooper, Counsel



INTRODUCTION

The appellant's father had recognized service for which he was entitled to payment from December 1941 to June 1942, and from August 1945 to June 1946. He was a prisoner of war from May 10 to June 2, 1942. He received a dishonorable discharge in June 1946, while in absent without leave (AWOL) status.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an RO determination that the appellant was not eligible for VA benefits, to include DIC, death pension, or accrued benefits by a surviving spouse or child, because she was not considered a child for VA purposes. The Board affirmed the RO determination in an April 2001 decision.

Thereafter, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court). By Order dated in February 2003, the Court vacated and remanded the case to the Board pursuant to 38 U.S.C.A. § 7252(a).

REMAND

In its April 2001 decision, the Board determined that the appellant was statutorily barred from receiving benefits as a helpless child. The Board noted the claim was based on the service of the veteran's father, and that no evidence was submitted which would explain his reasons for going AWOL, and this lack of evidence precluded a finding that his discharge from service was under conditions other than dishonorable. Moreover, the Board found that because the appellant was over the age of 23 and had not contended or provided any evidence to demonstrate that she became permanently incapable of self-support prior to reaching the age of 18; she

- 2 

did not meet the criteria for payment of benefits even if the discharge were under honorable conditions.

The Veterans Claims Assistance Act (VCAA) was enacted on November 9, 2000. The VCAA modified the Secretary's duties to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 51O3A, 5107, 5126 (West 2002).

The VCAA requires VA to inform a claimant (1) of the information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. 38 U.S.C.A. § 5103(a).

Subsequent to the Board's 2001 decision, the Court held that the notice requirements of § 5103 ( a) are not met unless VA can point to a specific document in the record that provided that notice. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This notice is required even where it could be argued that the lack of such notice would be harmless error. Huston v. Principi, 17 Vet App 195 (2003).

The Court vacated the Board's April 2001 decision because there was no evidence that VA had provided the appellant with the notice required by § 5103(a) as interpreted in Quartuccio. Since the appellant has not received this notice, a remand is necessary.

Accordingly, this case is remanded for the following:

The RO should provide the veteran with a VCAA notice letter which gives specific notice of what evidence is needed to substantiate her claim, of what evidence she is responsible for obtaining, and of what evidence VA will undertake to obtain.

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Then, if otherwise in order, the case should be returned to the Board. The appellant has the right to submit additional argument and evidence on the matter or matters the Board has remanded to the regional office. 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 2002) (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. 8.43 and 38.02.

Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).

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