Citation Nr: 0419012	
Decision Date: 07/15/04    Archive Date: 07/27/04

DOCKET NO.  95-23 708	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen the veteran's claim for entitlement to service 
connection for amblyopia and anopsia of the right eye.

2.  Whether new and material evidence has been received to 
reopen the veteran's claim for entitlement to service 
connection for a fungal infection (onychomycosis) of the 
hands and feet.

3.  Whether new and material evidence has been received to 
reopen the veteran's claim for entitlement to service 
connection for a stomach disorder, claimed as gastritis and 
colon polyps.

4.  Entitlement to service connection for farsightedness, 
astigmatism, and presbyopia of the left eye.

5.  Entitlement to service connection for tinnitus.

6.  Entitlement to service connection for vertigo.

7.  Entitlement to service connection for fibromyalgia.

8.  Entitlement to service connection for peripheral 
neuropathy.

9.  Entitlement to service connection for an acquired 
psychiatric disorder to include post-traumatic stress 
disorder (PTSD).

10.  Entitlement to service connection for bronchitis.

11.  Entitlement to a compensable evaluation for tinea 
versicolor of the back, trunk, sides, and abdomen.


REPRESENTATION

Appellant represented by:	Military Order of the Purple 
Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel




INTRODUCTION

The veteran served on active duty from November 1966 to 
October 1968.

The New Orleans, Louisiana, Department of Veterans (VA), 
Regional Office (RO) granted service connection and assigned 
a 10 percent disability rating for tinea versicolor of the 
back, trunk, side and abdomen in an April 1971 rating 
decision.  Service connection for bilateral hyperopic 
astigmatism and amblyopia of the right eye was denied in that 
same rating action.

In March 1976, the RO discontinued payment for service- 
connected tinea versicolor as the veteran failed to report 
for his scheduled VA examination.  To date, the veteran has 
been unable to re-establish entitlement to a compensable 
disability rating for this service-connected tinea 
versicolor.

In April 1979, the RO issued a rating decision which, in 
pertinent part, denied entitlement to service connection for 
fungus of the hands and feet, on a direct basis, as well as 
service connection for the veteran's right eye conditions, on 
a new and material basis.  He filed a timely notice of 
disagreement (NOD), and was issued a statement of the case 
(SOC) in June 1979.  The veteran apparently did not receive a 
copy of the SOC, and one was reissued in December 1981.  In 
January 1982, the veteran filed a substantive appeal wherein 
he withdrew his right eye disorder claim from appellate 
consideration.  However, the veteran raised several other 
claims, to include entitlement to service connection for a 
stomach disorder.  He thereafter presented testimony as to 
his claim seeking entitlement to service connection for 
fungus of the hands and feet at a personal hearing held by 
the Rating Board at the local VARO March 1982.  The Rating 
Board confirmed and continued the denial of the benefit 
sought in an April 1982 supplemental statement of the case 
(SSOC).

In late-April 1982, the RO denied entitlement to service 
connection for multiple disabilities to include a stomach 
disorder.  The veteran was informed of these adverse 
determinations, as well as provided with an 'Appeal Notice,' 
by VA letter dated May 18, 1982.  He did not initiate an 
appeal, and the portion of the rating decision relating to 
his stomach disorder became final.

In November 1982, the Board of Veterans' Appeals (Board) 
denied entitlement to service connection for fungal infection 
of the hands and feet on a direct basis.

These current matters come to the Board on appeal from an 
October 1994 rating decision of the New Orleans VARO, which 
denied entitlement to service connection for fungal infection 
of the hand and feet as secondary to Agent Orange exposure.  
The RO also denied entitlement to an increased disability 
rating for tinea versicolor and service connection for PTSD.  
The veteran's claim for service connection for (unspecified) 
residuals of microwave radiation exposure was denied as not 
well grounded.  He filed a timely NOD, and was issued a SOC 
in April 1995.

In July 1995, the veteran filed a VA Form 9, Appeal to the 
Board, wherein he clarified that he was seeking service 
connection for bone spurs in the jaw and hands, colon polyps, 
stomach problems, bronchitis, arthritis and fibromyalgia due 
to microwave radiation exposure.  The RO confirmed and 
continued the denial of the veteran's microwave radiation 
claims by rating decision and SSOC issued later that month.

In May 1996, the veteran presented testimony at a personal 
hearing held by the Hearing Officer (HO) at the local VARO.  
He thereafter submitted 'new' claim of entitlement to service 
connection for peripheral neuropathy in August 1996.  He also 
offered an alternative theory of service connection for bone 
spurs and colon polyps, claiming that they were secondary to 
his peripheral neuropathy.  The HO confirmed and continued 
the denial of the benefits on appeal by SSOC issued in 
November 1996.  Later that month, the veteran submitted 
another VA Form 9, wherein he claimed that his peripheral 
neuropathy was secondary to Agent Orange exposure.

The RO denied entitlement to the veteran's 'additional' 
claims for service connection for peripheral neuropathy 
secondary to Agent Orange exposure, as well as bone spurs and 
colon polyps secondary to peripheral neuropathy in a December 
1996 rating decision.  His peripheral neuropathy claims were 
included as additional issues in the January, February and 
May 1997 SSOCs.  His May 1997 VA Form 9 has been accepted as 
his substantive appeal regarding the 'additional' peripheral 
neuropathy claims.

In October 1997, the veteran presented testimony as to all of 
the above-mentioned issues at a personal hearing held by the 
HO at the local VARO.  At that time, he also offered 
testimony as to several 'additional' claims for service 
connection as a result of Agent Orange or microwave radiation 
exposure, to include:  (1) tinnitus; (2) amblyopia and 
anopsia of the right eye, as well as refractive error (double 
vision) of the left eye; and (3) vertigo.  The HO denied 
entitlement to all of the benefits sought in a March 1998 
SSOC.  The veteran's April 1998 VA Form 9 is hereby accepted 
as his substantive appeal as to his 'additional' service 
connection claims.

In November 1999, the veteran offered testimony at a personal 
hearing held by the undersigned Veterans Law Judge at the 
local VARO.  At the pre-hearing conference, the veteran 
submitted a statement wherein he withdrew his claims for bone 
spurs in the jaw and hands.  In addition, he also withdrew 
Agent Orange and microwave radiation exposure as bases for 
consideration of entitlement to service connection.  
Accordingly, his service connection claims will now only be 
adjudicated on a direct basis.

Following a review of the claims folder, the Board remanded 
the claim to the RO for the purpose of obtaining additional 
information.  In that action, the Board reclassified the 
issues involving the right eye, a fungal infection, and 
stomach disorder as whether new and material evidence had 
been received to reopen the claims.  Additionally, the remand 
requested that the veteran's medical records be obtained and 
that the veteran undergo additional medical evaluations.  
That remand was dated May 2000.  The case has since been 
returned to the Board for review.

At present, the portion of this appeal that is a remand is 
returned 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.  

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the issues addressed in the decision portion 
of this Decision/Remand has been obtained by the RO.

2.  Service connection for amblyopia and anopsia of the right 
eye was denied by the agency of original jurisdiction in an 
April 1971 decision on the basis that the disorder was 
congenital in nature and that it was not aggravated or caused 
by his military service, and as such, not a disease for which 
service connection could be granted.

3.  The evidence received subsequent to the April 1971 rating 
decision includes medical treatment records, VA examination 
reports, written statements made by the veteran, personal 
hearing testimony, and assorted treatises.  This evidence is 
cumulative, and it is not so significant that it must be 
considered in order to fairly decide the merits of the 
veteran's claim.

4.  Service connection for a fungal infection (onychomycosis) 
of the hands and feet was denied by the Board in a decision 
dated November 1982.  That decision found that while the 
veteran then-had a fungal infection of the hands and feet, 
the medical evidence did not link the disability with the 
veteran's military service or any incidents therein.  As 
such, service connection could not be granted.

5.  The evidence received subsequent to the November 1982 
Board decision includes medical treatment records, VA 
examination reports, written statements made by the veteran, 
personal hearing testimony, and various treatises, books 
excerpts, and unit information.  This evidence is cumulative, 
and it is not so significant that it must be considered in 
order to fairly decide the merits of the veteran's claim.

6.  Service connection for a stomach disability was denied by 
the agency of original jurisdiction in an April 1982 decision 
on the basis that the stomach disorder was not related to any 
condition for which he had been treated therefor while in 
service and medical evidence etiologically linking the 
current disability with the veteran's military service had 
not been presented.  

7.  The evidence received subsequent to the April 1982 rating 
decision includes medical treatment records, VA examination 
reports, written statements made by the veteran, treatises, 
and personal hearing testimony.  This evidence is cumulative, 
and it is not so significant that it must be considered in 
order to fairly decide the merits of the veteran's claim.

8.  The veteran's left eye disability (farsightedness, 
astigmatism, and presbyopia) is a refractive error; there is 
no competent evidence of record that shows the presence of an 
acquired eye disorder.

9.  The veteran has been diagnosed as suffering from a severe 
recurrent major depressive disorder with anxiety.  Said 
disability has been etiologically linked with the veteran's 
military service.

10.  Competent medical evidence has not been presented 
showing symptoms and manifestations of tinea versicolor.  


CONCLUSIONS OF LAW

1.  The April 1971 rating decision denying entitlement to 
service connection for amblyopia and anopsia of the right eye 
is final.  38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 
19.118, 19.153 (1971); currently 38 U.S.C.A. § 7105(c) (West 
2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003).

2.  New and material evidence has not been submitted, and the 
claim of entitlement to service connection for amblyopia and 
anopsia of the right eye has not been reopened.  38 U.S.C.A. 
§ 5108 (West 2002); 38 C.F.R. § 3.156 (a) (effective prior to 
August 29, 2001).

3.  The November 1982 Board decision denying entitlement to 
service connection for a fungal infection (onychomycosis) of 
the hands and feet is final.  38 U.S.C. § 4004(b) (1976); 38 
C.F.R. § 19.104 (1982); currently 38 U.S.C.A. § 7104(b) (West 
2002); 38 C.F.R. § 20.1100 (2003). 

4.  New and material evidence has not been submitted, and the 
claim of entitlement to service connection for a fungal 
infection (onychomycosis) of the hands and feet has not been 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 
(a) (effective prior to August 29, 2001). 

5.  The April 1979 rating decision, denying entitlement to 
service connection for a stomach disorder, claimed as 
gastritis and colon polyps, is final.  38 U.S.C. § 4005(c) 
(1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1981); currently 
38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 
20.302, 20.1103 (2003).

6.  New and material evidence has not been submitted, and the 
claim of entitlement to service connection for a stomach 
disorder, claimed as gastritis and colon polyps, has not been 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 
(a) (effective prior to August 29, 2001).

7.  The veteran's left eye disability is not a disability for 
VA compensation purposes, and an acquired eye disorder was 
not incurred in or aggravated by active service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303 (2003).

8.  An acquired psychiatric disorder was incurred as a result 
of the veteran's active military service.  38 U.S.C.A. §§ 
1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003).

9.  The criteria for a compensable evaluation for tinea 
versicolor of the back, trunk, side, and abdomen have not 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 4.7, 4.118, Diagnostic Codes 7800, 7803, 7804, 7805, 7806 
(2002, 2003).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In November 2000, the President has signed into law the 
Veterans Claims Assistance Act of 2000 (VCAA).  See, 
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002).  In 
particular, this law redefines the obligations of VA with 
respect to the duty to notify and to assist.  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 but not yet final as of that date.  VCAA, Pub. L. 
No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2001), 
38 U.S.C.A. § 5107 note (Effective and Applicability 
Provisions) (West 2002).  See also, 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, and 3.326(a) (2003).  

With respect to the claims addressed in this decision, VA's 
duties have been fulfilled to the extent possible.  VA must 
notify the veteran of evidence and information necessary to 
substantiate the claims and inform him whether he or VA bears 
the burden of producing or obtaining that evidence or 
information.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. 
§ 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  The veteran has been notified of the information 
necessary to substantiate the claims by means of the 
discussions in the original rating decisions, the various 
statements of the case (SOC), and the supplemental statements 
of the case (SSOC).  Specifically, in those documents, the 
appellant has been told that he needed to submit evidence 
supporting his assertions.  

VA informed the appellant of which evidence he was to provide 
to VA and which evidence VA would attempt to obtain on his 
behalf.  In this regard, the VA sent the appellant notice of 
the VCAA by letter, which spelled out the requirements of the 
VCAA and what the VA would do to assist the veteran.  The VA 
also informed the appellant that it would request records and 
other evidence, but that it was the appellant's 
responsibility to ensure that the VA received the records.  
Additionally, in order to ensure that an adequate evaluation 
of the veteran's disabilities was procured and before the VA, 
the veteran has undergone numerous disability-appropriate 
examinations and evaluations.  

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).  Here, the RO obtained 
the veteran's available private and government medical 
treatment records pertaining to his various claimed 
disabilities.  The veteran was also provided recent medical 
examinations in order to assess the presence and severity of 
claimed disorders.  Moreover, the veteran was given the 
opportunity to provide testimony before a Veterans Law Judge 
and an RO hearing officer.  The veteran did provide testimony 
before both.  It seems clear that the VA has given the 
veteran every opportunity to express his opinions with 
respect to his claims; the VA has obtained all known 
documents that would substantiate the veteran's assertions; 
and, the veteran has undergone recent examination so that the 
VA would have a complete picture of the veteran's claimed 
disorders and disabilities.  

The Board notes that the VCAA notification letter sent to the 
veteran properly notified him of his statutory rights.  See 
Paralyzed Veterans of America, et. al. v. Secretary of 
Department of Veterans Affairs (PVA), 345 F.3d 1334 (Fed. 
Cir. 2003); Disabled American Veterans, et. al. v. Secretary 
of Department of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. 
Cir. 2003).  After the letter was sent to the veteran, he 
underwent additional medical testing and he submitted 
numerous more than one year after that letter was originally 
sent.  An amendment to the VCAA was recently enacted 
clarifying that the one-year period within which evidence may 
be submitted does not prohibit VA from making a decision on a 
claim before expiration of that time period.  Veterans 
Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 
2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. §  
____).

Also, in Pelegrini v. Principi, 17 Vet. App. 412 (2004), the 
United States Court of Appeals for Veterans Claims (Court) 
discussed the statutory requirement in 38 U.S.C.A. § 5103(a) 
that VCAA notice be sent to a claimant before the initial 
adjudication of his claim.  Satisfying the strict letter 
holding in Pelegrini would require the Board to dismiss every 
case that did not absolutely meet these standards.  Such an 
action would render a rating decision promulgated prior to 
providing the veteran full VCAA notice void ab initio, which 
in turn would nullify the notice of disagreement and 
substantive appeal filed by the veteran.  In other words, 
strictly following Pelegrini would require that the entire 
rating process be reinitiated from the very beginning.  That 
is, the claimant would be provided VCAA notice and an 
appropriate amount of time to respond before an initial 
rating action.  Following the rating decision, the claimant 
would have to file a new notice of disagreement, a new 
statement of the case would be required, and finally, the 
submission of a new substantive appeal by the claimant.  The 
prior actions of the veteran would be nullified by a strict 
reading of Pelegrini, and essentially place the appellant at 
the end of the line of cases waiting to be adjudicated.  

There is no statutory authority that renders the initial 
adjudication of the veteran's claim null and void because of 
lack of strict VCAA compliance.  Furthermore, the Board does 
not believe that voiding the rating decisions is in this 
veteran's best interests.  Simply put, in this case, the 
claimant has been presented every opportunity to submit 
evidence, and to attend a hearing at the RO before a hearing 
officer or before a Veterans Law Judge at the RO or in 
Washington, DC.  He was provided with notice of the 
appropriate laws and regulations.  He was given notice of 
what evidence he needed to submit, and notice of what 
evidence VA would secure on his behalf.  He was allowed ample 
time to respond.  The veteran was not prejudiced because he 
does not, as the Court noted in Pelegrini, have to "overcome 
an adverse determination."  There is no final adverse 
determination of his claim.  The Board does a de novo review 
of the evidence and is not bound by the RO's prior 
conclusions in this matter.  

Hence, not withstanding Pelegrini, to allow the appeal to 
continue would not be prejudicial error to the claimant.  
Under the facts of this case, "the record has been fully 
developed," and "it is difficult to discern what additional 
guidance VA could have provided to the veteran regarding what 
further evidence he should submit to substantiate his 
claim." Conway v. Principi, No. 03-7072 (Fed. Cir. Jan. 7, 
2004); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 
(1991) (strict adherence to requirements in the law does not 
dictate an unquestioning, blind adherence in the face of 
overwhelming evidence in support of the result in a 
particular case; such adherence would result in unnecessarily 
imposing additional burdens on VA with no benefit flowing to 
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) 
(remands which would only result in unnecessarily imposing 
additional burdens on VA with no benefit flowing to the 
veteran are to be avoided).  Therefore, for these reasons, 
the Board finds that the intent and purpose of the VCAA were 
satisfied by the notice given to the veteran, and he was not 
prejudiced by any defect in the timing of that notice.

Alternatively, the Board finds that any possible defect with 
respect to the timing of the VCAA notice was harmless error.  
While the notice provided to the appellant was not given 
prior to the first agency of original jurisdiction (AOJ) 
adjudication of the claim, the notice was provided, as a 
result of a Board remand, by the AOJ prior to the transfer 
and the second certification of the appellant's case to the 
Board, and the content of the notice fully complied with the 
requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 
C.F.R. § 3.159(b) (2003).  As such, the appellant has been 
provided with every opportunity to submit evidence and 
argument in support of his claim, and to respond to VA 
notices.  Therefore, not withstanding Pelegrini, to decide 
the appeal would not be prejudicial error to the veteran.

I.  New and Material Evidence

The veteran has come before the VA asking that his claims for 
service connection for a right eye disability, a fungal 
infection of the hands and feet, and a stomach disorder be 
reopened.  He maintains that these disabilities either began 
in service or were aggravated by his military service, and as 
such, he should receive compensation benefits for them.  

The record reflects that service connection was denied by the 
RO for amblyopia and anopsia, right eye in an April 1971 
rating decision, fungal infection of the feet and hands in an 
April 1979 rating decision and by the Board in a November 
1982 decision.  Additionally, entitlement to service 
connection for a stomach disorder was denied by the RO in an 
April 1982 rating decision.

In August 2001, VA issued regulations to implement the VCAA.  
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended 
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).  The 
amendments, which apply only to claims governed by Part 3 of 
the Code of Federal Regulations, were effective November 9, 
2000, except for the amendment to 38 C.F.R. § 3.156(a), which 
was made effective August 29, 2001.  While the VCAA and the 
regulations implementing the VCAA provide in some 
circumstances for VA to obtain an additional medical 
examination or opinion, special provisions apply to claims to 
reopen finally adjudicated claims filed after November 9, 
2000, allowing such development only if new and material 
evidence is presented or secured, given that the claim was 
previously denied.

In this regard, the Board observes that the VCAA appears to 
have left intact the requirement that a claimant must first 
present new and material evidence in order to reopen a 
previously and finally denied claim under 38 U.S.C.A. § 5108 
before the Board may determine whether the duty to assist is 
fulfilled and proceeding to evaluate the merits of that 
claim.  It is specifically noted that nothing in the Act 
shall be construed to require the Secretary to reopen a claim 
that has been disallowed except when new and material 
evidence is presented or secured, as described in 38 U.S.C.A. 
§ 5108.  38 U.S.C.A. § 5103A(f) (West 2002).

The Board acknowledges that the implementing regulations 
modify the definition of new and material evidence and 
provide for assistance to a claimant on claims to reopen.  
See 66 Fed. Reg. at 45,630 (codified as amended at 38 C.F.R. 
§§ 3.156(a), 3.159(c)).  However, the regulation provisions 
affecting the adjudication of claims to reopen a finally 
decided claim are applicable only to claims received on or 
after August 29, 2001.  66 Fed. Reg. at 45,620.  Because the 
veteran's claim to reopen the previously denied claims was 
received before that date, those regulatory provisions do not 
apply.  The Board has considered the provisions of the VCAA 
in its adjudication of the issue of whether new and material 
evidence has been submitted to reopen the claims for service 
connection and finds that no further assistance in developing 
the facts pertinent to this limited issue is required at this 
time. 

New and material evidence means evidence not previously 
submitted to agency decision makers that bears directly and 
substantially upon the specific matter under consideration, 
which is neither cumulative nor redundant, and which by 
itself or in connection with evidence previously assembled is 
so significant that it must be considered in order to fairly 
decide the merits of the claim.  38 C.F.R. § 3.156(a).  
Reopening the claim no longer requires a reasonable 
possibility that the new evidence, when viewed in the context 
of all the evidence, both new and old, would change the 
outcome.  Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998) 
(expressly rejecting the standard for determining whether new 
and material evidence had been submitted sufficient to reopen 
a claim as set forth in Colvin v. Derwinski, 1 Vet. App. 171 
(1991)).  In determining whether evidence is new and 
material, the credibility of the new evidence is to be 
presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The Court has clarified that, with respect to the issue of 
materiality, the newly presented evidence need not be 
probative of all the elements required to award the claims as 
in this case dealing with claims for service connection.  
Evans v. Brown, 9 Vet. App. 273 (1996).  However, it is the 
specified bases for the final disallowance that must be 
considered in determining whether the newly submitted 
evidence is probative.  Id.  Such evidence must tend to prove 
the merits of the claim as to each essential element that was 
a specified basis for that last final disallowance of the 
claim.  Id.  

A.  Right Eye

The veteran maintains that he is entitled to service 
connection for amblyopia and anopsia of the right eye.  The 
veteran has admitted that he did suffer from a right eye 
disability prior to his enlistment in the service but he now 
suggests that his military service aggravated the pre-
existing disability.  He thus contends that service 
connection is warranted.  

As indicated, the veteran was denied service connection in a 
rating decision dated in April 1971.  In that rating 
decision, it was determined that the veteran's right eye 
disability was a constitutional or developmental abnormality, 
and as such, it was not a disability under the law.  When the 
RO made that determination, it had before it statements by 
the veteran and his service medical records.  The Board notes 
that the veteran's service medical records contained numerous 
references to the right eye disability.  Said condition was 
noted on the veteran's first induction physical; it was 
examined via a consultation examination prior to the 
veteran's actual induction into service.  Moreover, while in 
service, the veteran underwent numerous eye examinations in 
order to determine the nature and severity of the right eye 
disability.  In those instances, the disability was 
classified as occurring prior to service.  It was diagnosed 
as being congenital in nature.  Additionally, there was no 
indication that the disability became more disabling while 
the veteran was enduring the rigors of service.  That is, 
there was not a suggestion or insinuation in the record that 
would infer that the pre-existing disability became more 
disabling during service.  Hence, the veteran was notified of 
that decision but did not perfect his appeal; thus, that 
decision became final.  38 U.S.C. § 4005(c) (1970); 38 C.F.R. 
§§ 3.104, 19.118, 19.153 (1971); currently 38 U.S.C.A. 
§ 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 
(2003). 

Since 1971, the veteran has submitted private medical 
records, VA medical treatment records, written statements, 
testimony, excerpts from US Congressional hearings, training 
manuals, and scientific reports and analyses.  He has also 
undergone numerous eye examinations and he has also proffered 
unit history records.  

This evidence is new.  It was not of record in 1971.  
However, it is not so significant that it must be considered 
in order to decide his claim fairly.  Although the veteran 
maintains that his eye disability became worse as a result of 
his military service, none of the voluminous amounts of 
evidence corroborates his contentions.  A VA eye examination 
of November 1997 specifically indicates:

Amblyopia and anopsia right eye and 
refractive error left ye have existed 
since childhood.  They cannot be related 
directly or indirectly to any activity in 
service including Agent Orange. . . .

Moreover, VA ophthamalogical records from 1999 to 2001 do not 
insinuate, suggest, or positively conclude that the amblyopia 
and anopsia of the right eye was aggravated by the veteran's 
military service.  Additionally, none of the other treatment 
records stemming from the early 1990s to the present propose 
that the disability was made worse as a result of the 
veteran's military service.  While the veteran has provided 
statements to support his claim along with other evidence, he 
has not proffered any medical evidence that would discount or 
cause the Board to question the original service evaluation 
or the more recent VA medical examination of 1997.  

The Board acknowledges that the veteran has proffered US 
Congressional Hearing Transcripts, technical papers and 
treatises, medical journal reports/records, VA in-house 
studies/reports, US Army and US Navy unit historical studies 
(logistical and environmental), Board decisions on veterans 
not related to the appellant, and other documents obtained 
from the internet or other reference sources.  Yet, these 
submissions are general in nature and they do not reference, 
by name, the veteran.  They have not included the veteran as 
a study candidate.  They have not provided any additional 
information or evidence that would cause the Board to doubt 
the validity or merits of the original service connection 
decision.  

Thus, the only evidence linking the veteran's current right 
eye disability with his military service are the assertions 
made by the veteran himself.  Notwithstanding their recent 
submission, and while the Board recognizes that they have 
been made with the best intentions, the written and oral 
statements are essentially cumulative and they have been 
previously seen and reviewed by the VA.  Since the evidence 
received since the April 1971 rating decision is cumulative 
of evidence of record considered in that decision, it does 
not bear directly and substantially upon the specific matters 
under consideration, and it is not so significant that it 
must be considered in order to fairly decide the merits of 
the claim.  Thus, the veteran's attempt to reopen his claim 
for service connection for amblyopia and anopsia of the right 
eye must fail.  

B.  Fungal Infection

In 1979 the veteran submitted a claim to the RO asking that 
service connection be granted for a fungal infection 
(onychomycosis), and the residuals thereof, affecting the 
hands and feet.  The veteran asserted that he was treated for 
said disability while stationed at Fort Bliss, Texas.  The 
service medical records show that the veteran was stationed 
at Fort Bliss in 1967.  During that time, the veteran 
received treatment for a skin rash, pain in his feet, a 
gaseous stomach condition, and for his bilateral eye 
disability.  He did not receive treatment for a fungal 
infection of the feet and/or hands.  Moreover, the service 
medical records do not show treatment for such a condition 
while he was undergoing basic training in 1966 or while he 
was stationed in the Republic of Vietnam in the latter days 
of 1967 and 1968.  The end-of-enlistment physical also does 
not show findings for or residuals of a fungal infection 
affecting the hands or the feet.

Based upon this evidence, service connection was denied in a 
rating action dated in April 1979.  In denying the benefit, 
the RO concluded that "fungus of the hands and feet" was 
"not shown by evidence of record".  The veteran was 
notified of that decision and he appealed that decision.  

Following that decision, the veteran proffered testimony 
before an RO hearing officer.  He reasserted his previous 
statements.  Additionally, an Agent Orange Medical Screening 
Examination was performed in October 1981.  At that time, it 
was discovered that the veteran did indeed have a fungal 
infection of the toenails and fingernails.  However, the 
examiner did not relate the condition to the veteran's 
military service.  A January 1982 VA treatment report was 
also submitted that showed a diagnosis of onychomycosis.  
However, an etiological opinion was not provided.

The claims folder was forwarded to the Board and in November 
1982, the Board issued a decision on the merits of the 
veteran's claim.  The Board concluded that while the evidence 
showed the presence of a current disability, the same medical 
evidence did not etiologically link the current disability 
with the veteran's military service.  Moreover, the Board 
determined that the medical evidence did not show a 
chronicity of symptoms and manifestations while in service 
and post-service.  It further found that the disability was 
not related to any other service-connected disability, such 
as the service-connected tinea versicolor.  The veteran was 
notified of this decision in November 1982.  He did not 
request reconsideration of the decision; hence, that decision 
became final.  38 U.S.C. § 4004(b) (1976); 38 C.F.R. § 19.104 
(1982); currently 38 U.S.C.A. § 7104(b) (West 2002); 38 
C.F.R. § 20.1100 (2003). 

When the Board denied service connection in November 1982, 
the Board based its decision on the veteran's service medical 
records, the veteran's application for benefits, a hearing 
transcript, and VA medical examination reports.  Since then, 
the veteran has submitted private medical records, VA medical 
treatment records, written statements, testimony, excerpts 
from US Congressional hearings, excerpts from training 
manuals, and scientific reports and analyses.  He has also 
undergone numerous dermatological examinations and he has 
also proffered unit history records and unrelated Board 
decisions.  He has also provided testimony before the Board.

This evidence is new.  It was not of record in 1982.  
However, it is not so significant that it must be considered 
in order to decide his claim fairly.  Although the veteran 
claims that there is a connection between the fungal 
infection and his military service, none of the evidence 
presented, either medical, testimonial, or reference, 
substantiate the veteran's assertions.  A VA skin examination 
of September 1994 specifically notes that when the veteran 
gave the history of the fungal infection, he admitted that he 
did not begin exhibiting symptoms of the infection until 
after he returned from the Republic of Vietnam.  That same 
examination confirmed the presence of onychomycosis of the 
nails of the hands and feet but it did not suggest any type 
of relationship with the veteran's military service.  

Another dermatology examination, dated October 1997, again 
confirms the presence of onychomycosis.  However, unlike 
previous histories given to medical examiners, the veteran 
stated that he had a fungal infection of the thumb nail prior 
to going to the Republic of Vietnam.  Despite the veteran's 
assertions that the condition existed while he was in 
service, the examiner did not confirm those statements.  

The claims folder contains a third dermatological examination 
that was performed in April 2003.  This examination did not 
provide a medical link between the current fungal infection 
with the veteran's military service.

A review of the other medical evidence of record does show 
treatment for onychomycosis.  However, those treatment 
records do not etiologically link the disability with the 
veteran's service.  Additionally, the other documents 
provided by the veteran, such as the unit reports, the 
Congressional hearing transcripts, the excerpts from military 
manuals, and the like do not name the veteran and they do not 
show that the fungal infection was incurred while the veteran 
was in service.

The Board acknowledges that the veteran has proffered US 
Congressional Hearing Transcripts, technical papers and 
treatises, medical journal reports/records, VA in-house 
studies/reports, US Army and US Navy unit historical studies 
(logistical and environmental), Board decisions on veterans 
not related to the appellant, and other documents obtained 
from the internet or other reference sources.  Yet, these 
submissions are general in nature and they do not reference, 
by name, the veteran.  They have not included the veteran as 
a study candidate.  They have not provided any additional 
information or evidence that would cause the Board to doubt 
the validity or merits of the original service connection 
decision.  

In essence, the volumes of documents submitted by the veteran 
since the Board denied the veteran's claim in 1982 do not 
authenticate the veteran's assertions that he has a 
dermatological disability affecting his feet and hands that 
was caused by or the result of his military service.  Thus, 
while the veteran has provided statements to support his 
claim along with other current documents and medical records, 
he has not proffered any medical evidence that would discount 
or cause the Board to question the Board's decision of 1982.  

Thus, the only evidence linking the veteran's current fungal 
infection with his military service are the assertions made 
by the veteran.  While these documents and statements are 
new, they are essentially cumulative.  In other words, since 
the evidence received since the 1982 Board action is 
cumulative of evidence of record considered in that decision, 
it does not bear directly and substantially upon the specific 
matter under consideration, and it is not so significant that 
it must be considered in order to fairly decide the merits of 
the claims.  Thus, the veteran's attempt to reopen his claim 
for service connection for a fungal infection of the hands 
and feet must fail, and his claim is denied.  

C.  Stomach Disorder

Another disability for which the veteran claims began while 
in service is a stomach disorder, also claimed as gastritis 
and colon polyps.  Such a disability has been previously 
before the RO.  Specifically, in April 1982, the RO concluded 
that any stomach condition for which the veteran suffered 
therefrom while in service was acute and transitory in nature 
and was not related to any then-current stomach disabilities 
from which the veteran was diagnosed with in 1982.  In making 
this decision, the RO relied upon the veteran's service 
medical records, statements in support of his claim, and 
medical records from 1981 and 1982.  The veteran was notified 
of that decision but did not perfect his appeal; hence, that 
decision became final.  38 U.S.C. § 4005(c) (1976); 38 C.F.R. 
§§ 3.104, 19.118, 19.153 (1981); currently 38 U.S.C.A. 
§ 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 
(2003). 

Since the RO denied entitlement to service connection for a 
stomach disorder in April 1982, the veteran has proffered 
private medical records, VA medical treatment records, 
written statements, testimony, excerpts from US Congressional 
hearings, excerpts from training manuals, and scientific 
reports and analyses.  He has also undergone treatment for 
various disabilities and he has been diagnosed as having 
colon polyps and gastritis.  Moreover, the veteran has 
submitted unit history records, unrelated Board decisions, 
and other documents addressing the military in general during 
the Vietnam War Era.  He has also provided testimony before 
the Board.

The evidence provided to the VA since that 1982 RO rating 
decision is, in fact, new.  It was not of record in 1982.  
Nevertheless, it is not so significant that it must be 
considered in order to decide his claim fairly.  While the 
medical information provided does note treatment for stomach 
disorders and disabilities, those same records do not provide 
conclusive statements linking the current disability with the 
veteran's military service.  Furthermore, they do not hint or 
suggest that any current stomach disability or disorder was 
related to the acute and transitory conditions the veteran 
suffered therefrom during his two years of active duty.  With 
respect to the other treatises and documents provided by the 
veteran, that evidence discusses various items that are not 
pertinent to the veteran himself.  That is, they do not, by 
name, document the veteran as having particular stomach 
disorders or disabilities and they do not offer hypotheses on 
the etiology of any condition from which the veteran now 
suffers.  All in all, none of the documents proffered by the 
veteran, either medical or testimonial, substantiate the 
veteran's assertions.  

Additionally, while the veteran now claims that he has 
stomach disabilities that are related to his military 
service, the Board notes that when the veteran originally 
applied to the VA for benefits, he made the same assertions.  
The medical evidence at that time did not find that the 
veteran had stomach disorders related to his military service 
in the US Army.  While the veteran has provided statements to 
support his claim along with assorted other documents, 
including medical records, he has not proffered any medical 
evidence that would discount or cause the Board to question 
the original service connection decision in 1982.  

Thus, the only evidence linking the veteran's current stomach 
disabilities, to include colon polyps and gastritis, with his 
military service are the assertions made by the veteran 
himself.  Notwithstanding their recent submission, the 
written and oral statements are essentially cumulative and 
have been previously seen and reviewed by the VA.  Since the 
evidence received since the 1982 rating decision is 
cumulative of evidence of record considered in that decision, 
it does not bear directly and substantially upon the specific 
matters under consideration, and it is not so significant 
that it must be considered in order to fairly decide the 
merits of the claim.  Thus, the veteran's attempt to reopen 
his claim for service connection for a stomach disorder, 
claimed as colon polyps and gastritis, is denied.  



II.  Service Connection

Under 38 U.S.C.A. § 1110, 1131 (West 2002) and 38 C.F.R. § 
3.303(b) (2003), service connection may be awarded for a 
"chronic" condition when:  (1) a chronic disease manifests 
itself and is identified as such in service (or within the 
presumption period under 38 C.F.R. § 3.307) and the veteran 
presently has the same condition; or (2) a disease manifests 
itself during service (or during the presumptive period), but 
is not identified until later, and there is a showing of 
continuity of related symptomatology after discharge, and 
medical evidence relates that symptomatology to the veteran's 
present condition.  Savage v Gober, 10 Vet. App. 488, 495-98 
(1997). 

To grant service connection, it is required that the evidence 
shows the existence of a current disability, an in-service 
disease or injury, and a link between the disability and the 
in-service disease or injury.  Watson v. Brown, 4 Vet. App. 
309, 314 (1993).  This principle has been repeatedly 
reaffirmed by the United States Court of Appeals for the 
Federal Circuit, which has stated that ". . . a veteran 
seeking disability benefits must establish . . . the 
existence of a disability [and] a connection between the 
veteran's service and the disability."  Boyer v. West, 210 
F.3d 1351, 1353 (Fed.Cir. 2000).

A.  Disability of the Left Eye

The veteran has requested service connection for 
farsightedness, astigmatism, and presbyopia of the left eye.  
The veteran's service medical records indicate that on 
entrance examination, he was diagnosed as having 20/40 vision 
in the left eye.  An ophthamalogical consult was performed in 
November 1966.  He was diagnosed with congenital amblyopia of 
both eyes and hyperopia with astigmatism of the right eye.  
The doctor further found that papillary reflexes, extrinsic 
ocular muscles, and ocular tension were normal.  No corneal 
scars, obstruction of lacrimal drainage, or other unusual 
ocular pathologies were noted.  The vision of the left eye 
was correctable to 20/20.  

The veteran's eyesight was measured again when he was 
discharged from the service.  The examination was performed 
in October 1968.  The left eye was again measured; the 
veteran was found to have 20/40 eyesight correctable to 
20/20.  The veteran was not diagnosed as having any other 
disability of the left eye.  

In conjunction with his claim, the veteran underwent a VA eye 
examination in November 1997.  The veteran was diagnosed as 
having farsightedness astigmatism presbyopia.  The examiner 
concluded that such a disability existed since childhood and 
was not related directly or indirectly to the veteran's 
military service.  The veteran's left eye disability was 
classified as "refractive error" of the left eye.  The 
claims folder also contains VA ophthamalogical records from 
1999 to 2001.  They mirror the diagnosis given while the 
veteran was in service and again in 1997.  Specifically, they 
show a diagnosis of refractive error of the left eye - 
farsightedness, astigmatism, and presbyopia of the left eye.

Refractive error of the eye is not a disease or injury within 
the meaning of applicable legislation governing the award of 
compensation benefits.  38 C.F.R. § 3.303(c) (2003).  That 
is, in the absence of superimposed disease or injury, service 
connection may not be allowed for refractive error of the 
eyes, including hyperopia, presbyopia and astigmatism, even 
if visual acuity decreased in service, as this is not a 
disease or injury within the meaning of applicable 
legislation relating to service connection.  38 C.F.R. 
§§ 3.303(c), 4.9 (2003).

As such, regardless of the character or quality of any 
evidence that the veteran could submit, the veteran's 
refractive error cannot be recognized as a disability for VA 
compensation.  Because the veteran's condition is not a 
disease or injury, there is no legal basis upon which to 
grant entitlement to service connection for refractive error.  
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(c), 
4.9 (2003).

In this case, the facts are not in dispute, and application 
of the law to the facts is dispositive.  Where there is no 
entitlement under the law to the benefit sought, the appeal 
must be terminated.  See Sabonis v. Brown, 6 Vet. App. 426 
(1994).



B.  Psychiatric Disorder

When the veteran submitted his claim in 1994, he claimed that 
he was suffering from post-traumatic stress disorder (PTSD).  
He stated that his PTSD was not combat-related per se; 
instead, he maintained that he suffered from sexual 
harassment and undue mental grief due to his physical 
demeanor and his eyesight.  Over the past ten years, the 
veteran has provided testimony, both before the RO and the 
Board, that explains his position.  He has stated that due to 
his pre-existing right eye disability, he was unable to 
perform certain military duties, such as standing guard, 
driving or shooting of a weapon.  As a result of that 
inability to perform, the veteran contends that he was 
harassed by his fellow soldiers, noncommissioned officers, 
medical staffers, and officers.  It is further maintained by 
the veteran that since leaving the service, he has developed 
a psychiatric disability that has been variously labeled as 
PTSD and/or a generalized anxiety disorder and/or a major 
depressive disorder.

During the course of this appeal, the VA regulation 
applicable to PTSD service connection claims, 38 C.F.R. § 
3.304(f), was amended to reflect changes in law as a result 
of the Cohen decision.  See Cohen v. Brown, 10 Vet. App. 128, 
138 (1997); 38 C.F.R. § 3.304(f) (1999); 64 Fed. Reg. 32807- 
08 (1999).  Eligibility for a PTSD service connection award 
requires that three elements must be present according to VA 
regulations: 

(1) medical evidence diagnosing the 
condition in accordance with 38 C.F.R. 
§ 4.125(a); 
(2) credible supporting evidence that the 
claimed inservice stressor actually 
occurred; and 
(3) a link, established by medical 
evidence, between the current symptoms 
and the claimed inservice stressor. 

38 C.F.R. § 3.304(f) (1999) (as amended, 64 Fed. Reg. 32808, 
June 18, 1999); now 38 C.F.R. § 3.304(f) (2003).  As amended, 
section 3.304(f) provides that if the evidence establishes 
that the veteran engaged in combat with the enemy and the 
claimed stressor is related to that combat, in the absence of 
clear and convincing evidence to the contrary, and provided 
that the claimed stressor is consistent with the 
circumstances, conditions, or hardships of the veteran's 
service, the veteran's lay testimony alone may establish the 
occurrence of the claimed in-service stressor.  See also 38 
U.S.C.A. § 1154(b) (West 2002).

If the claimed stressor is related to combat, service 
department evidence that the veteran engaged in combat or 
that the veteran was awarded the Purple Heart, Combat 
Infantryman Badge, or similar combat citation will be 
accepted, in the absence of evidence to the contrary, as 
conclusive evidence of the claimed in-service stressor.  38 
C.F.R. § 3.304(f) (2003).

In deciding this appeal, the Board will, if appropriate, 
apply the amended version of section 3.304(f) cited above as 
this version is clearly more favorable to the appellant's 
claim.  The amended version of section 3.304(f) removed the 
requirement of a "clear" diagnosis of PTSD and replaced it 
with the specific criteria that a PTSD diagnosis must be 
established in accordance with 38 C.F.R. 4.125(a), which 
mandates that for VA purposes, all mental disorder diagnoses 
must conform to the fourth edition of the American 
Psychiatric Association's Diagnostic and Statistical Manual 
for Mental Disorders (DSM- IV).

The Board's interpretation that the amended version of 38 
C.F.R. § 3.304(f) is a liberalizing change in the law is 
premised on a precedent decision of the Court.  In the case 
of Cohen v. Brown, 10 Vet. App. 128 (1997), the Court took 
judicial notice of the mental health profession's adoption of 
the DSM-IV in May 1994 (first printing) and its more 
liberalizing standards to establish a diagnosis of PTSD, 
specifically, a change from an objective "would evoke . . . 
in almost anyone" standard in assessing whether a stressor 
is sufficient to trigger PTSD, to a subjective standard - 
would a person's exposure to a traumatic event and response 
involving intense fear, helplessness, or horror.  Hence, the 
Court noted that a more susceptible person could have PTSD 
under the DSM-IV criteria given his or her exposure to a 
traumatic event that would not necessarily have the same 
effect on "almost everyone."  Cohen, 10 Vet. App. 128, 140- 
41 (1997).

The interpretation that the revised version of 38 C.F.R. § 
3.304(f) is more favorable is reinforced by two additional 
points:  (1) the Court's view that the "clear diagnosis" 
standard set forth under the old version of section 3.304(f) 
should be an "unequivocal" one, Cohen, 10 Vet. App. at 139, 
which in the Board's view reflects a more stringent hurdle 
for the claimant to overcome, and (2) the fact that the June 
1999 amendments to 38 C.F.R. § 3.304(f) were made 
retroactively effective to the date of the Court's decision 
in Cohen, March 7, 1997, reflecting the Department's view 
that the holding in that decision liberalized the criteria to 
establish service connection for PTSD.

For the purposes of establishing service connection, a 
stressor is an event experienced by the veteran during active 
service that is outside the range of normal human experience 
and that would be markedly disturbing to almost anyone.  
Examples of such events are experiencing an immediate threat 
to one's life, or witnessing another person being seriously 
injured or killed.  It is the distressing event, rather than 
the mere presence in a "combat zone" that may constitute a 
valid stressor for the purposes of supporting a diagnosis of 
PTSD.  See Zarycki v. Brown, 6 Vet. App. 91, 99 (1993); Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991).

Additionally, VA Manual M21-1 outlines the specific 
procedures required for the VA to follow in evaluating claims 
for service connection based on PTSD.  Essentially, this 
regulation requires evidence that the veteran served in the 
area in which the stressful event was alleged to have 
occurred and evidence to support the description of the 
event.  If the claimed stressor is related to combat, in the 
absence of information to the contrary, receipt of the Purple 
Heart, Combat Infantryman Badge, Bronze Star, or other 
similar citations is considered supportive evidence of 
participation in a stressful episode.  Other types of 
supportive evidence, such as plane crash, ship sinking, 
explosion, rape or assault, duty on a burn ward or in a 
graves registration unit may be accepted.  POW (prisoner-of- 
war) status is conclusive evidence of an in-service stressor.

Relative to PTSD, if the evidence shows that the veteran was 
engaged in combat with the enemy and the claimed stressor was 
related to combat, no further development for evidence of a 
stressor is necessary.  If the claimed stressor is not 
related to combat with the enemy, a history of a stressor as 
related by the veteran is, in itself, insufficient.  Service 
records must support the assertion that the veteran was 
subjected to a stressor of sufficient gravity to evoke the 
symptoms in almost anyone.  Thus, the existence of a 
recognizable stressor or accumulation of stressors must be 
supported.  It is important that the stressor be described as 
to its nature, severity, and date of occurrence.  Manual M21- 
1, Part VI, para. 7.46(e),(f) (Dec. 21, 1992).

Additionally, with regard to the second criterion, the 
evidence necessary to establish that the claimed stressor 
actually occurred varies depending on whether the veteran 
"engaged in combat with the enemy."  38 U.S.C.A. § 1154(b) 
(West 2002).  "Where it is determined, through recognized 
military citations or other supportive evidence, that the 
veteran was engaged in combat with the enemy and the claimed 
stressors are related to such combat, the veteran's lay 
testimony regarding claimed stressors must be accepted as 
conclusive as to their actual occurrence and no further 
development for corroborative evidence will be required, 
provided that the veteran's testimony is found to be 
'satisfactory,' e.g., credible, and 'consistent with the 
circumstances, conditions, or hardships of [combat] 
service.'"  Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 
U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) 
(2003).

Section 1154(b) provides a factual basis upon which a 
determination can be made that a particular disease or injury 
was incurred or aggravated in service but not a basis to link 
etiologically the condition in service to the current 
condition.  See Libertine v. Brown, 9 Vet. App. 521, 524 
(1996); Caluza [v. Brown], 7 Vet. App. [498,] 507 (1995).  
Although the provision does not establish service connection 
for a particular disability of a combat veteran, it aids the 
combat veteran by relaxing the adjudicative evidentiary 
requirements for determining what happened in service.  See 
id. at 508; see also Collette v. Brown, 82 F.3d 389, 392 
(Fed. Cir. 1996) (noting that § 1154(b) "does not create a 
statutory presumption that a combat veteran's alleged disease 
or injury is service-connected" but "considerably 
lightens[s] the burden of a veteran who seeks benefits for an 
allegedly service-connected disease or injury and who alleges 
that the disease or injury was incurred in, or aggravated by, 
combat service"); cf. Jensen v. Brown, 19 F.3d 1413, 1417 
(Fed. Cir. 1994) (38 C.F.R. § 3.306, derived from § 1154(b), 
creates a presumption of aggravation but "not service-
connection, or even that the determination of aggravation is 
irrebuttable".)  See Cohen v. Brown, 10 Vet. App. 128, 138 
(1997).

The veteran's principal claimed stressors are that he was 
unduly harassed as the result of a physical disability and 
put in fear of being sexually assaulted by other males during 
his period of active duty.  In this regard, the Court has 
noted that in claims for service connection for PTSD based on 
personal assault, VA has established special procedures for 
evidentiary development.  Patton v. West, 12 Vet. App. 272, 
277 (1999).  These procedures, which became effective in 
February 1996, take into account the fact that since personal 
assault is an extremely sensitive issue, many incidents of 
personal assault are not officially reported, and victims of 
this type of in-service trauma may find it difficult to 
produce evidence to support the occurrence of the stressor.  
These procedures thus acknowledge the difficulty claimants 
face in establishing the occurrence of the stressor through 
standard evidence, and the need for development of alternate 
sources of evidence.  See VA Adjudication Procedure Manual 
M21-1 (hereinafter M21-1), Part III, paragraph 5.14c (Feb. 
20, 1996) (substantially enlarging on the former Manual M21-
1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)).  Alternate 
sources that may provide credible evidence of an in-service 
personal assault include medical or counseling treatment 
records following the incident, military or civilian police 
reports, reports from crisis intervention or other emergency 
centers, statements from confidants or family, copies of 
diaries or journals, or behavior changes documented or 
observed at the time of the incident, such as obsessive 
behavior at the time of the incident, pregnancy tests, 
increased interest in test for sexually transmitted diseases, 
termination of primary relationships, or alcohol and drug 
abuse.  Evidence that documents any such behavioral changes 
may require interpretation by a VA neuropsychiatric physician 
to determine whether such evidence bears a relationship to 
the medical diagnoses.  See M21-1, Part III, para. 
5.14(c)(9).

Furthermore, these provisions recognize that the standard 
PTSD stressor letter may be inappropriate for this type of 
PTSD claim, and thus state that if the claimed stressful 
incident is a personal assault, a stressor development letter 
specifically tailored for personal assault cases should be 
sent to such veterans.  See M21-1, Part III, para. 
5.14(c)(6).

In addition, the Court in Patton stated that in two places 
M21-1, Part III, para. 5.14(c)(3) and (9), appeared 
improperly to require that the existence of an in-service 
stressor be shown by "the preponderance of the evidence" 
and held that any such requirement was inconsistent with the 
benefit of the doubt doctrine found in 38 U.S.C.A. § 5107(b).  
Therefore the evidence need only be in relative equipoise to 
prevail on the question of the existence of the stressor.

Finally, effective March 7, 2002, VA amended the regulations 
concerning the evidence necessary to establish the occurrence 
of a stressor in claims for service connection for PTSD 
resulting from personal assault.  These new regulations 
partially divided and expanded 38 C.F.R. § 3.304(f), and 
require that VA not deny such claims without:  (1) first 
advising claimants that evidence from sources other than a 
claimant's service medical records, including evidence of 
behavior changes, may constitute supporting evidence of the 
stressor; and (2) allowing him or her the opportunity to 
furnish this type of evidence or advise VA of potential 
sources of such evidence.  38 C.F.R. § 3.304(f)(3) (2003) .

Specifically, this regulation provides the following 
guidance:  If a PTSD claim is based on in-service personal 
assault, evidence from sources other than the veteran's 
service records may corroborate the veteran's account of the 
stressor incident.  Examples of such evidence include, but 
are not limited to:  records from law enforcement 
authorities, rape crisis centers, mental health counseling 
centers, hospitals, or physicians; pregnancy tests or tests 
for sexually transmitted diseases; and statements from family 
members, roommates, fellow service members, or clergy.  
Evidence of behavior changes following the claimed assault is 
one type of relevant evidence that may be found in these 
sources.  Examples of behavior changes that may constitute 
credible evidence of the stressor include, but are not 
limited to:  a request for a transfer to another military 
duty assignment; deterioration in work performance; substance 
abuse; episodes of depression, panic attacks, or anxiety 
without an identifiable cause; or unexplained economic or 
social behavior changes.  VA will not deny a PTSD claim that 
is based on in-service personal assault without first 
advising the claimant that evidence from sources other than 
the veteran's service records or evidence of behavior changes 
may constitute credible supporting evidence of the stressor 
and allowing him or her the opportunity to furnish this type 
of evidence or advise VA of potential sources of such 
evidence.  VA may submit any evidence that it receives to an 
appropriate medical or mental health professional for an 
opinion as to whether it indicates that a personal assault 
occurred.  See 38 C.F.R. § 3.304(f)(3) (2004).

After the Board remanded the claim in May 2000, the veteran 
underwent a VA psychiatric examination in May 2003.  The 
examiner was specifically told to evaluate the veteran in 
order to determine whether the veteran was suffering from 
PTSD.  The examiner reported that he had reviewed the 
veteran's medical records and after speaking with the 
veteran, the doctor concluded that the veteran was suffering 
from a severe recurrent major depressive disorder and an 
anxiety disorder, not otherwise specified.  He was not 
diagnosed as having PTSD.  The doctor further wrote:

The veteran does not meet criteria for 
posttraumatic stress disorder, but does 
meet criteria for major depressive 
disorder and anxiety disorder not 
otherwise specified, which appear more 
likely than not related to the harassment 
he experienced while in the service.  The 
veteran acknowledges some difficulty with 
anxiety prior to his military service.  
He also acknowledged that his medical 
problems likely contributed to his 
anxiety prior the service.  This examiner 
agrees with the following statement in 
the prior report:  "Mr. Ledet, however, 
appears to have been mistreated by his 
superior officers and abused by the 
military system.  It is reasonable and 
likely that he feels anger and 
significant distress over those events.  
Mr. Ledet's feeling of low self esteem 
and sense of inadequacy may have worsened 
as a result of the events in the 
service."  In summary, it appears that 
while the veteran was predisposed to 
psychiatric difficulties, the harassment 
he experienced in the service exacerbated 
this predisposition, largely contributing 
to his overall psychiatric condition and 
presentation.

The evidence is clear that the veteran currently suffers from 
a psychiatric disability classified as a major depressive 
disorder and an anxiety disorder, not otherwise specified.  
He is presumed to have been free from this disability at the 
time of entry into service.  

The question arises as to whether the Board believes the 
veteran's assertions that he harassed while he was in 
service.  Such a determination does have a direct effect on 
the veteran's claim since the above-quoted diagnosis is 
anchored on that supposition.  In this instance, the Board 
believes that the claims folder contains evidence of 
behavioral changes by the veteran in service and after he was 
released from the US Army.  The record clearly shows that the 
veteran attempted to transfer to another military duty 
assignment on at least two different occasions.  He has 
suffered from alcohol abuse and since he was released from 
service, he has endured numerous episodes of depression and 
anxiety.  Moreover, VA doctors have found the veteran's 
retelling of his military experiences to be credible and they 
have indicated that the veteran has experienced a personal 
assault and stresses not normally experienced by others.  
Most importantly, VA examiners have stated that the veteran's 
military experiences have had a clear relationship to his 
diagnosed disability.

While a VA doctor has not diagnosed the veteran as having 
PTSD, that same examiner has linked the veteran's current 
mental disorder with his military service.  Therefore, direct 
service connection is warranted for an acquired psychiatric 
disorder classified as a major depressive disorder and 
anxiety disorder.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303 (2003).  Hence, the veteran's appeal on this issue is 
granted.



III.  Increased Evaluation

The veteran has come to the VA asking that his dermatological 
condition, tinea versicolor of the back, trunk, side, and 
abdomen, be assigned a compensable evaluation.  Disability 
evaluations are determined by the application of a schedule 
of ratings, which is based on the average impairment of 
earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., 
Part 4 (2003).  Separate diagnostic codes identify the 
various disabilities.  38 C.F.R. § 4.1 (2003) requires that 
each disability be viewed in relation to its history and that 
there be emphasis upon the limitation of activity imposed by 
the disabling condition.  38 C.F.R. § 4.2 (2003) requires 
that medical reports be interpreted in light of the whole 
recorded history, and that each disability must be considered 
from the point of view of the veteran working or seeking 
work.  38 C.F.R. § 4.7 (2003) provides that, where there is a 
question as to which of two disability evaluations shall be 
applied, the higher evaluation is to be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating is to 
be assigned.  In every instance where the schedule does not 
provide a zero percent evaluation for a diagnostic code, a 
zero percent evaluation shall be assigned when the 
requirements for a compensable evaluation are not met.  38 
C.F.R. § 4.31 (2003).

The regulations do not give past medical reports precedence 
over current findings.  Francisco v. Brown, 7 Vet. App. 55, 
58 (1994).  While the evaluation of a service-connected 
disability requires a review of the appellant's medical 
history with regard to that disorder, the Court has held 
that, where entitlement to compensation has already been 
established, and an increase in the disability rating is at 
issue, the present level of disability is of primary concern.  
Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. 
§§ 4.1, 4.2 (2003).  With respect to this issue before the 
Board, the appeal does not stem from the veteran's 
disagreement with an evaluation assigned as a result of the 
original grant of service connection, and the potential for 
the assignment of separate, or "staged" ratings for 
separate periods of time, based on the facts found, are not 
for consideration.  Fenderson v. West, 12 Vet. App. 119 
(1999).

An evaluation of the level of disability present also 
includes consideration of the functional impairment of the 
veteran's ability to engage in ordinary activities, including 
employment.  38 C.F.R. § 4.10 (2003).

Three years after the veteran was discharged from the US Army 
in 1968, service connection was granted for tinea versicolor 
of the back, trunk, side, and abdomen.  VA Form 21-6796, 
Rating Decision, April 21, 1971.  He was initially assigned a 
10 percent disability rating in accordance with the rating 
criteria found at 38 C.F.R. Part 4, Diagnostic Codes 7899 and 
7806 (1970).  The compensable evaluation was subsequently 
reduced to a noncompensable rating in August 1975.  Now the 
veteran comes before the VA asking that his disability be 
assigned a compensable evaluation.  

As noted, this disability has been rated pursuant to the 
rating criteria found at Diagnostic Codes 7899 and 7806.  38 
C.F.R. Part 4 (2001) and (2003).  During the pendency of the 
veteran's appeal, VA's Schedule for Rating Disabilities was 
amended.  By regulatory amendment, effective July 31, 2002, 
changes were made to the schedular criteria for evaluating 
skin disabilities, as set forth in 38 C.F.R. §§ 4.118 (2001).  
See 67 Fed. Reg. 49596- 49599 (2002).  The veteran is 
entitled to the application of the version of the regulation 
that is more favorable to him from the effective date of the 
new criteria, but only the former criteria are to be applied 
for the period prior to the effective date of the new 
criteria.  VAOPGCPREC 3-2000 (April 10, 2000), published at 
65 Fed. Reg. 33,422 (2000).  In pertinent part, these new 
regulations are not so different from the old as to require 
special development to prevent prejudice to the veteran.  

The veteran's tinea versicolor is currently rated as 
noncompensable pursuant to the former diagnostic code for 
eczema.  A noncompensable rating is warranted for slight, if 
any, exfoliation, exudation or itching, if on a nonexposed 
surface or small area.  A 10 percent rating is warranted for 
exfoliation, exudation or itching, if involving an exposed 
surface or extensive area.  A 30 percent rating is warranted 
for exudation or itching constant, extensive lesions, or 
marked disfigurement.  Ulceration or extensive exfoliation or 
crusting and systemic or nervous manifestations or 
exceptional repugnance warrants a 50 percent rating.  38 
C.F.R. § 4.118, Diagnostic Code 7806 (2003).

Under the regulations in effect prior to July 31, 2002 
disfiguring scars of the head, face or neck warrant a 
noncompensable evaluation if the disfigurement is slight or a 
10 percent evaluation if the disfigurement is moderate.  38 
C.F.R. § 4.118, Diagnostic Code 7800 (2001).  Superficial 
scars warrant a 10 percent evaluation if they are poorly 
nourished and subject to repeated ulceration or if they are 
tender and painful on objective demonstration.  Scars may 
also be rated based on limitation of function of the part 
affected.  38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 
and 7805 (2001).

The revised Diagnostic Code 7800 provides that disfigurement 
of the head, face, or neck, where shown by one characteristic 
of disfigurement warrants a 10 percent rating.  Note (1) 
provides that the eight characteristics of disfigurement are:  
scar five or more inches (13 or more cm.) in length; scar at 
least one-quarter inch (0.6 cm.) wide at widest part; surface 
contour of scar elevated or depressed on palpation; scar 
adherent to underlying tissue; skin hypo-or hyper-pigmented 
in an area exceeding six square inches (39 sq. cm.); skin 
texture abnormal (irregular, atrophic, shiny, scaly, etc.) in 
an area exceeding six square inches (39 sq. cm.); underlying 
soft tissue missing in an area exceeding six square inches 
(39 sq. cm.); skin indurated and inflexible in an area 
exceeding six square inches (39 sq. cm.).  Note (2) states:  
Rate tissue loss of the auricle under Diagnostic Code 6207 
(loss of auricle) and anatomical loss of the eye under 
Diagnostic Code 6061 (anatomical loss of both eyes) or 
Diagnostic Code 6063 (anatomical loss of one eye), as 
appropriate.  Note (3) states to take into consideration 
unretouched color photographs when evaluating under these 
criteria.  67 Fed. Reg. 49,596 (July 31, 2002), (to be 
codified at 38 C.F.R. § 4.118, Diagnostic Code 7800).

The revised criteria for Diagnostic Code 7806 for eczema now 
includes dermatitis, and provides for a 10 percent rating 
where at least 5 percent, but less than 20 percent, of the 
entire body, or at least 5 percent, but less than 20 percent, 
of exposed areas are affected or intermittent systemic 
therapy such as corticosteroids or other immunosuppressive 
drugs are required for a total duration of less than six 
weeks during the past 12 month period.  A rating of 30 
percent is warranted where 20 to 40 percent of the entire 
body or 20 to 40 percent of exposed areas are affected, or 
systemic therapy such as corticosteroids or other 
immunosuppressive drugs are required for a total duration of 
six weeks or more, but not constantly, during the past 12- 
month period.  67 Fed. Reg. 49,596 (July 31, 2002), (to be 
codified at 38 C.F.R. § 4.118, Diagnostic Code 7806).

Although the veteran reported experiencing recurrent symptoms 
associated with outbreaks, particularly during the summer, 
there is no documented pattern of repeated medical visits for 
treatment of the reported active recurrences.  In fact, 
review of the medical evidence reveals very few, if any, 
recent clinical findings attributable to tinea versicolor, 
including when the veteran recently underwent a VA 
dermatological examination for compensation purposes in April 
2003.  At the conclusion of that examination, the examiner 
specifically stated that tinea versicolor of the back, trunk, 
side, and abdomen were not found.  This same diagnosis echoes 
diagnoses given in September 1994 and October 1997.  All 
three examinations found that the veteran had a diagnosis of 
tinea versicolor by history but that the veteran was not 
showing or experiencing any symptoms and manifestations of 
the disability.  

Additionally, there is no indication from the record that 
there is any type of disfigurement, limitation of motion, 
ulceration, exudation, or crusting, due to the veteran's 
tinea versicolor.  During the veteran's examination in April 
2003, the veteran did state that he had occasional flare-ups 
but that it was relieved by topical medications.  There is no 
indication that he has required corticosteroids or 
immunosuppressive drugs.  Accordingly, the veteran's tinea 
versicolor is not shown to be so symptomatic or actively 
disabling as to warrant a compensable disability evaluation.

In reaching the above determination, the Board considered 
whether the veteran's service-connected disability standing 
alone presents an exceptional or unusual disability picture, 
as to render impractical the application of the regular 
schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2003); 
Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. 
Brown, 9 Vet. App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).  Significantly, however, no evidence 
has been presented showing factors such as a marked 
interference with employment beyond that interference 
contemplated in the assigned ratings or frequent periods of 
hospitalization, due solely to the veteran's service-
connected tinea versicolor of the back, trunk, side, and 
abdomen, as to render impractical the application of the 
regular schedular standards.  In the absence of such factors, 
the Board finds that the criteria for submission for 
assignment of an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) (2003) are not met.


ORDER

New and material evidence sufficient to reopen the veteran's 
claim for entitlement to service connection for amblyopia and 
anopsia of the right eye has not been received, and the 
appeal is denied.

New and material evidence sufficient to reopen the veteran's 
claim for entitlement to service connection for a fungal 
infection (onychomycosis) of the hands and feet has not been 
received, and the appeal is denied.

New and material evidence sufficient to reopen the veteran's 
claim for entitlement to service connection for a stomach 
disorder, claimed as gastritis and colon polyps, has not been 
received, and the appeal is denied.  

Service connection for farsightedness, astigmatism, and 
presbyopia of the left eye is denied.

Service connection for an acquired psychiatric disorder is 
granted.

A compensable evaluation for tinea versicolor of the back, 
trunk, sides, and abdomen is denied.




REMAND

In addition to the above issues, the veteran has also 
requested that service connection be granted for tinnitus, 
vertigo, fibromyalgia, peripheral neuropathy, and the 
residuals of bronchitis.  As a result of the veteran's 
original claim to the VA, he underwent numerous physical 
examinations with respect to these disabilities in October, 
November, and December 1997.  

Specifically, the record reflects that an ear examination of 
the veteran was accomplished in November 1997.  
Unfortunately, the examination did not discuss the veteran's 
tinnitus claim.  Nothing was provided by the examiner as to 
whether the veteran was suffering from tinnitus and if he 
was, the etiology of said condition.  

An examination to determine whether the veteran was suffering 
from fibromyalgia was done in December 1997.  Upon reading 
that examination report, the Board finds that it was 
inconclusive.  In evaluating the veteran, the examiner wrote 
the following:

	. . . In considering fibromyalgia in 
this individual, it should be remembered 
that fibromyalgia is actually a rather 
unusual condition in males and is quite 
often accompanied with sleep apnea which 
has not been investigated in this 
individual.  However, on physical exam he 
was tender in all the classic tender 
points for fibromyalgia and also positive 
for all the negative controls.

Also the history which he presents with 
is somewhat confusing and makes it rather 
difficult to determine if this individual 
has true fibromyalgia.  I believe, 
however, that it is significant to note 
that he did have myofascial bundles in 
the scapular regions and the shoulders 
which is a condition that is frequently 
confused with the diagnosis of 
fibromyalgia and he admits to a history 
of clinical depression which would also 
obscure the diagnosis of fibromyalgia.

A positive diagnosis was not given at the conclusion of the 
examination report.  Moreover, even if a diagnosis of 
fibromyalgia had been given, it is unclear from the record 
the etiology of such a disability or whether it was related 
to or caused by another condition from which the veteran was 
suffering therefrom.

Another examination accomplished in late 1997 was a General 
Medical Examination.  In that report, the examiner wrote the 
following:

	. . . the regional office wants an 
opinion as to the etiology of the 
veteran's . . . fibromyalgia . . . lung 
condition, tinnitus, vertigo, peripheral 
neuropathy . . . The regional office is 
asking a total impossible question to 
answer.  It is also especially difficult 
when compensation is involved to know the 
severity of [the] patient's symptoms. . . 
. It is usually impossible to tell why 
somebody has this [tinnitus and vertigo].  
As best I can tell from the patient's 
history his lung condition that the 
regional office is referring to is his 
chronic cough and by patient's history 
the chronic cough is caused by sinus 
disease. . . . There are many causes for 
peripheral neuropathy.  This has not been 
diagnosed by this examiner in this 
patient at this time.  Please see 
scheduled nerve condition studies.  There 
are many causes of peripheral neuropathy 
such as diabetes.  This patient does not 
have, but it is not always possible to 
give a diagnosis.  The question of 
fibromyalgia is also a political question 
as many doctors do not believe that the 
disease exists and if it does exist there 
is certainly controversy as to what its 
cause is. . . .

The claims folder indicates that the above noted examination 
results were not returned to the VA medical center for 
clarification nor were additional examinations performed with 
respect to the five disabilities since 1997.  Additionally, 
examinations in order to confirm the presence of tinnitus, 
vertigo, fibromyalgia, peripheral neuropathy, and the 
residuals of bronchitis have not been performed within the 
last two years.  Moreover, examination reports with doctors' 
comments that would provide etiological findings concerning 
any found disabilities have not been accomplished.  And, 
examinations have not been executed that would clear up the 
confusion and lack of information provided by the above cited 
examinations.  

VA has a duty to notify the appellant of any information and 
evidence needed to substantiate and complete a claim.  
38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. 
§ 3.159(b) (2003).  See Quartuccio v. Principi, 16 Vet. App. 
183 (2002) (holding that both the statute, 38 U.S.C. 
§ 5103(a), and the regulation, 38 C.F.R. § 3.159, 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).  VA also has a duty 
to assist the appellant in obtaining evidence necessary to 
substantiate the claim.  38 U.S.C.A. § 5103A (West 2002); 38 
C.F.R. § 3.159(c) (2003).  

VA has a duty to obtain a medical examination or opinion when 
such examination or opinion is necessary to make a decision 
on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).  As noted, 
the record reflects that a VA doctor has not opined as to 
whether any of the claimed disabilities are a result of or 
may be related to the veteran's military service.  A thorough 
and contemporaneous medical examination that takes into 
account the records of prior medical treatment (the complete 
claims folder) so that the disability evaluation will be a 
fully informed one should be accomplished.  See Hyder v. 
Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. 
App. 121, 124 (1991).  Based upon the evidentiary record in 
the instant case, as discussed above, and in light of the 
applicable provisions of the VCAA, it is the Board's opinion 
that such examinations should be afforded the veteran before 
the Board issues a determination on the merits of his claim.

Accordingly, further appellate consideration will be deferred 
and the case is REMANDED to the RO for the following actions:

1.  The RO should contact the veteran and 
ask that he identify all sources of 
medical treatment received since January 
2003 and to furnish signed authorizations 
for release to the VA of private medical 
records in connection with each non-VA 
source identified regarding the remaining 
issues on appeal.  Copies of the medical 
records from all sources, including VA 
records, (not already in the claims 
folder) should then be requested.  All 
records obtained should be added to the 
claims folder.  If requests for any 
private treatment records are not 
successful, the RO should inform the 
veteran of the nonresponse so that he 
will have an opportunity to obtain and 
submit the records himself, in keeping 
with his responsibility to submit 
evidence in support of his claims.  38 
C.F.R § 3.159 (2003).  Furthermore, the 
veteran should be specifically informed 
as to what portion of evidence he is 
required/expected to submit, and which 
portion of the evidence the VA would 
attempt to obtain in order to assist the 
veteran in substantiating his claim, per 
38 U.S.C.A. §§ 5103(a), 5103A (West 
2002); Quartuccio, supra; Charles, supra.

2.  After the veteran's medical records 
have been obtained, the RO should 
schedule the veteran for VA examinations 
by the appropriate available specialist.  

A.  As requested, the veteran should 
undergo an audiological/ear examination.  
The purpose of this examination is to 
determine whether the veteran now suffers 
from tinnitus and vertigo, and if they 
are disabilities that were caused by or 
the result of his military service.  All 
indicated diagnostic tests should be 
accomplished, and all clinical tests 
should be recorded in detail.  The claims 
folder must be provided to the examiner 
for review prior to the examination.  

The examiner must express an opinion as 
to whether the veteran now suffers from 
the claimed disabilities and if he does, 
the examiner must also opine as to 
whether the disabilities are at least as 
likely as not related or secondary to the 
veteran's service and/or to a service-
connected disability.  If this matter 
cannot be medically determined without 
resort to mere conjuncture, this should 
be commented on by the examiner in the 
respective report.  

The results proffered by the examiner 
must reference the complete claims 
folders and any inconsistent past 
diagnoses given.  Also, it is requested 
that the results of the examination be 
typed or otherwise recorded in a legible 
manner for review purposes. 

B.  As requested, the veteran should 
undergo a rheumatology examination.  The 
purpose of this examination is to 
determine whether the veteran now suffers 
from fibromyalgia, and if it is a 
disability that was caused by or related 
to his military service or to a 
disability for which service connection 
has been awarded.  All indicated 
diagnostic tests should be accomplished, 
and all clinical tests should be recorded 
in detail.  The claims folder must be 
provided to the examiner for review prior 
to the examination.  

The examiner must express an opinion as 
to whether the veteran now suffers from 
the claimed disability and if he does, 
the examiner must also opine as to 
whether the disability is at least as 
likely as not related or secondary to the 
veteran's service.  If this matter cannot 
be medically determined without resort to 
mere conjuncture, this should be 
commented on by the examiner in the 
respective report.  

The results proffered by the examiner 
must reference the complete claims 
folders and any inconsistent past 
diagnoses given.  Also, it is requested 
that the results of the examination be 
typed or otherwise recorded in a legible 
manner for review purposes. 

C.  The veteran should also undergo a 
neurological examination in order to 
determine whether the veteran now suffers 
from peripheral neuropathy, and if he 
does, the cause or etiology of such a 
condition.  All indicated diagnostic 
tests should be accomplished, and all 
clinical tests should be recorded in 
detail.  The claims folder must be 
provided to the examiner for review prior 
to the examination.  

The examiner must express an opinion as 
to whether the veteran now suffers from 
the claimed disability and if he does, 
the examiner must also opine as to 
whether the disability is at least as 
likely as not related or secondary to the 
veteran's service or to a service-
connected disorder.  If this matter 
cannot be medically determined without 
resort to mere conjuncture, this should 
be commented on by the examiner in the 
respective report.  

The results proffered by the examiner 
must reference the complete claims 
folders and any inconsistent past 
diagnoses given.  Also, it is requested 
that the results of the examination be 
typed or otherwise recorded in a legible 
manner for review purposes. 

D.  Finally, a pulmonary examination 
should be performed on the veteran so 
that a determination may be made as to 
whether the veteran now suffers from the 
residuals of chronic bronchitis.  The 
purpose of this examination is also to 
discover whether any found bronchitis 
residuals are related to the veteran's 
military service.  All indicated 
diagnostic tests should be accomplished, 
and all clinical tests should be recorded 
in detail.  The claims folder must be 
provided to the examiner for review prior 
to the examination.  

The examiner must express an opinion as 
to whether the veteran now suffers from 
the claimed disability and if he does, 
the examiner must also opine as to 
whether the disability is at least as 
likely as not related or secondary to the 
veteran's service, or to a service-
connected disorder.  If this matter 
cannot be medically determined without 
resort to mere conjuncture, this should 
be commented on by the examiner in the 
respective report.  

The results proffered by the examiner 
must reference the complete claims 
folders and any inconsistent past 
diagnoses given.  Also, it is requested 
that the results of the examination be 
typed or otherwise recorded in a legible 
manner for review purposes. 

3.  The RO should review the claims 
folder and ensure that all of the 
foregoing development actions have been 
conducted and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  
Specific attention is directed to the 
reports of examinations.  If the 
requested reports do not include fully 
detailed descriptions of pathology and 
all test reports, special studies or 
adequate responses to the specific 
opinions requested, the reports must be 
returned for corrective action.  38 
C.F.R. § 4.2 (2003); see also Stegall v. 
West, 11 Vet. App. 268 (1998).

Thereafter, the RO should readjudicate the remaining claims.  
If the benefits sought on appeal remain denied, the appellant 
and the appellant's representative should be provided a 
supplemental statement of the case (SSOC).  The SSOC must 
contain notice of all relevant actions taken on the claims 
for benefits, to include a summary of the evidence and 
applicable law and regulations considered pertinent to the 
issues currently on appeal.  An appropriate period of time 
should be allowed for response.  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 purpose of the examinations requested in this remand is 
to obtain information or evidence (or both), which may be 
dispositive of the appeal.  Therefore, the veteran is hereby 
placed on notice that pursuant to 38 C.F.R. § 3.655 (2003) 
failure to cooperate by attending the requested VA 
examinations may result in an adverse determination.  See 
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

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 Act of 2003, Pub. L. No. 
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified 
at 38 U.S.C. §§ 5109B, 7112).



	                     
______________________________________________
	A. BRYANT
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
(RS) 
 
4597
Page 
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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
JUN 
2003 
(RS) 
 
4597
Page 
2