Citation NR: 9732610	
Decision Date: 09/24/97		Archive Date: 09/29/97
DOCKET NO.  93-10 271	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an increased (compensable) evaluation for 
lymphogranuloma venereum with groin pain, condylomata, 
postoperative circumcision.

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

3.  Whether new and material evidence has been submitted in 
order to reopen a claim for service connection for a 
personality disorder.

4.  Entitlement to service connection for hypertension. 

5.  Entitlement to service connection for arthritis of the 
knees.

6.  Entitlement to service connection for paraphimosis.

7.  Entitlement to service connection for mouth ulcers.

8.  Entitlement to service connection for residuals of 
tuberculosis, to include bronchitis.

9.  Entitlement to service connection for a nevus on the 
cheek.

10.  Entitlement to service connection for osteochondritis 
dissecans.

11.  Entitlement to service connection for hearing loss. 

12.  Entitlement to service connection for refractive error.

13.  Entitlement to service connection for residuals of 
bilateral eye injuries.

14.  Entitlement to service connection for ingrown facial 
hairs.

15.  Entitlement to service connection for bilateral ankle 
disabilities.

16.  Whether new and material evidence has been submitted in 
order to reopen a claim for service connection for jungle 
rot/tinea pedis.

17.  Entitlement to service connection for residuals of 
exposure to Agent Orange. 

18.  Entitlement to a total disability rating for 
compensation purposes on the basis of individual 
unemployability. 

18.  Whether new and material evidence has been submitted in 
order to reopen a claim for service connection for a 
personality disorder. 



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Daniel G. Krasnegor, Associate Counsel



INTRODUCTION

The veteran served on active duty from October 1967 to August 
1971.

The claims file contains a March 1988 Regional Office (RO) 
decision wherein entitlement to service connection for jungle 
rot and a personality disorder were denied.

The matters other than the claim for entitlement to service 
connection for residuals of Agent Orange exposure are before 
the Board of Veterans’ Appeals (Board) on appeal of an April 
1992 rating determination by the Department of Veterans 
Affairs (VA) RO.

The Board notes that the RO has previously adjudicated a 
portion of the claim as entitlement to service connection for 
a nervous condition to include a personality disorder.  A 
claim for entitlement to service connection for a personality 
disorder was previously denied by the RO in March 1988.  In 
this regard, in a recent decision, the United States Court of 
Appeals for the Federal Circuit held that the Board does not 
have jurisdiction to consider a claim which is previously 
adjudicated unless new and material evidence has been 
submitted.  The Federal Circuit determined that as a 
preliminary matter, the Board must therefore determine 
whether new and material evidence has been submitted before 
proceeding to decide a case on the merits.  Determinations 
made by the regional office as to newness and materiality are 
not deemed relevant. Barnett v. Brown 83 F.3d 1380 (Fed.Cir. 
1996).  Thus, the Board has recharacterized that aspect of 
the veteran's claim regarding the personality disorder as 
whether new and material evidence has been submitted in order 
to reopen the claim.

In his August 1992 substantive appeal, the veteran raised a 
claim for entitlement to service connection for a swollen 
lymph node.  This issue has been neither prepared nor 
certified for appellate review and is referred to the RO for 
appropriate action.

The claim for entitlement to service connection for residuals 
of Agent Orange exposure is before the Board on appeal of an 
August 1994 RO rating action.

This claim was previously before the Board in May 1995, at 
which time it was remanded to the RO for additional 
evidentiary development.

The claims regarding entitlement to an increased evaluation 
for lymphogranuloma venereum with groin pain, condylomata, 
postoperative circumcision; entitlement to a total disability 
rating for compensation purposes on the basis of individual 
unemployability; and entitlement to service connection for a 
psychiatric disorder, to include PTSD; will be addressed in 
the remand portion of this decision.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran maintains that he was discharged from service for 
a personality disorder, from which he still suffers, thereby 
warranting service connection.  Further, he argues that while 
in service, he suffered injuries to his eyes, ankles, and 
knees such that service connection should be granted.  In 
addition, he indicates that service connection should be 
granted for hypertension, paraphimosis, mouth ulcers, 
bronchitis, refractive error, osteochondritis dissecans, 
ingrown facial hairs, jungle rot/tinea pedis, and residuals 
of exposure to Agent Orange, as those conditions are service 
related.  Finally, the veteran claims that a nevus on his 
cheek is secondary to ingrown facial hairs.





DECISION OF THE BOARD

The Board of Veterans’ Appeals (Board), in accordance with 
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 
1997), has reviewed and considered all of the evidence and 
material of record in the veteran's claims file.  Based on 
its review of the relevant evidence in this matter, and for 
the following reasons and bases, it is the decision of the 
Board that new and material evidence has not been submitted 
to reopen claims for entitlement to service connection for 
jungle rot/tinea pedis or a personality disorder.

It is also the decision of the Board that the claims for 
service connection for hypertension, arthritis of the knees, 
paraphimosis, mouth ulcers, residuals of tuberculosis, to 
include bronchitis, a nevus on the neck, osteochondritis 
dissecans, hearing loss, refractive error, residuals of 
bilateral eye injuries, ingrown facial hairs, bilateral ankle 
disabilities and residuals of exposure to Agent Orange are 
not well grounded.


FINDINGS OF FACT

1.  In a March 1988 decision, the RO denied entitlement to 
service connection for jungle rot/tinea pedis and a 
personality disorder.

2.  The additional evidence submitted since the March 1988 
decision, consisting of VA and private medical records, and 
statements from the veteran, is not new, probative of the 
issue at hand, nor is there a reasonable possibility that 
when viewed in light of all the evidence of record, both new 
and old, it would change the prior outcome.

3.  The claims for service connection for hypertension, 
arthritis of the knees, paraphimosis, mouth ulcers, residuals 
of tuberculosis, to include bronchitis, a nevus on the neck, 
osteochondritis dissecans, hearing loss, refractive error, 
residuals of bilateral eye injuries, ingrown facial hairs, 
bilateral ankle disabilities and residuals of exposure to 
Agent Orange are not supported by cognizable evidence showing 
that the claims are plausible or capable of substantiation.


CONCLUSIONS OF LAW

1.  The decision of the RO in March 1988, wherein entitlement 
to service connection for jungle rot/tinea pedis and for a 
personality disorder was denied, is final.  38 U.S.C.§ 4005 
(1982); 38 C.F.R. § 19.192 (1987).

2.  Evidence received since the RO denied entitlement to 
service connection for a personality disorder and jungle 
rot/tinea pedis is not new and material, and the veteran's 
claims for those benefits have not been reopened. 38 U.S.C.A. 
§§ 5107, 5108 (West 1991 & Supp. 1997);  38 C.F.R. §§ 
3.156(a), (1996).

3.  The claims or service connection for hypertension, 
arthritis of the knees, paraphimosis, mouth ulcers, residuals 
of tuberculosis, to include bronchitis, a nevus on the neck, 
osteochondritis dissecans, hearing loss, refractive error, 
residuals of bilateral eye injuries, ingrown facial hairs, 
bilateral ankle disabilities and residuals of exposure to 
Agent Orange are not well grounded. 38 U.S.C.A. § 5107(a).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

a.  Personality disorder 

The evidence of record at the time of the March 1988 RO 
decision will be summarized below.

Of record was an August 1971 report from a US Air Force 
hospital, indicating that psychiatric examination and 
psychological testing failed to reveal any evidence of 
psychiatric condition warranting hospitalization.  There was 
found to be no mental defect, disease or derangement which 
would render him incapable of distinguishing right from wrong 
or adhering to the right.  He was noted to not be suffering 
from a psychiatric condition as recognized by the Air Force. 

At separation from service in August 1971, the veteran 
reported no history of nervous trouble, depression, or 
frequent or terrifying nightmares.  On examination, the 
veteran's psychiatric condition was assessed as abnormal due 
to a moderate psycopathetic personality.
 
The evidence submitted since the March 1988 RO decision will 
be summarized below.

In an April 1990 statement, the veteran indicated that he had 
behavioral problems which he attributed to his Vietnam 
service.  He specifically indicated that he was unemployed.

The veteran was hospitalized two times at a VA medical 
facility in April 1990 for complaints of a violent nature and 
inability to hold a job. During the second period of 
hospitalization, the veteran's history of paranoid 
schizophrenia was discussed, and it was noted that although 
the veteran claimed to have been discharged from service with 
that diagnosis, he was actually diagnosed with a personality 
disorder.  At discharge from the second hospitalization, his 
Axis I diagnosis was deferred.  On Axis II, the veteran was 
diagnosed with a borderline personality disorder with 
antisocial features.

In May 1990, the veteran was seen at a private medical 
facility, stating that he was a paranoid schizophrenic, and 
that he had mental problems since returning from Vietnam.  He 
was found not to have any diagnosis of Axis I.  He was 
further diagnosed with borderline personality disorder.

Also of record is a December 1990 Social Security 
Administration psychiatric examination.  The veteran was 
diagnosed at that time with severe borderline personality 
disorder. 

VA neuropsychiatric examination of the veteran was conducted 
in February 1991.  At that time, the veteran indicated that 
he was worried all the time, irritable, angry and that he got 
upset talking to people, and liked to be alone.  He further 
indicated he had trouble working, and that he had assaulted 
people in the past, and that he had nightmares about Vietnam 
and his service in North Dakota.  The examiner stated that 
the veteran gave numerous stories of attacks on a guard tower 
which had an exaggerated tone to them, and during which he 
did not appear upset, seeming to have enjoyed them.  The 
veteran was diagnosed with mixed personality disorder and 
possible schizophrenia.  There were noted to be no signs of 
PTSD.

Of record is a July 1991 report, completed by a physician who 
had examined the veteran.  According to the report, the 
veteran was diagnosed with borderline personality disorder 
with prominent antisocial traits, formerly diagnosed as 
psychopathic personality disorder. 

October 1991 VA out-patient treatment records indicate that 
the veteran was seen at a mental health clinic for his 
diagnosed borderline personality disorder with antisocial 
traits.

Also of record is a private medical record, dated in February 
1992, in which the veteran is diagnosed with borderline 
personality disorder with prominent antisocial traits.

b.  Hypertension

Service medical records contain no treatment for or diagnosis 
of hypertension.  At separation in August 1971, the veteran’s 
blood pressure was measured at 112/74.

Beginning in April 1990, the record contains multiple private 
and VA diagnoses of hypertension, including during VA 
examination in February 1991. 

In a January 1991 statement, the veteran said that a 
physician had told him his hypertension began in service.

During a personal hearing before the undersigned Board member 
in April 1993, the veteran indicated that he was first 
diagnosed with hypertension in 1971 at separation from 
service.

c.  Arthritis of the knees

At entry into service, the veteran gave a history of trauma 
to the left knee in January 1967.  It was noted that he had 
no history of locking or stopping, and had full range of 
motion and stability.

In May 1971, the veteran was seen with complaints of 
bilateral knee pain, right greater than left, after playing 
basketball.  It was noted that he had a long history of minor 
athletic injuries.  Examination of the knees was negative, 
and impression was pain, etiology unknown.

Of record is a report of medical history, dated in August 
1971, on which the veteran reported right knee trauma in 
March 1970, which had been treated with exercise with good 
effect.

At separation from service, in August 1971, the veteran's 
lower extremities were evaluated as normal.

Of record is a VA out-patient treatment record, dated in July 
1981, evidencing complaints of a painful right knee.

VA examination of the veteran's knee in February 1991 
revealed that it was stable to varus and valgus stress and 
drawer sign was negative.  The right knee had normal range of 
motion, no tenderness, swelling or crepitation.  The left 
knee had slight puffiness just medially and inferior to the 
patella.  He was diagnosed with recurrent synovitis of the 
knees with degenerative changes.

During a hearing at the RO in July 1992, the veteran recalled 
that he first hurt his knee while in service.

The veteran was afforded a hearing before the undersigned 
Board member in April 1993.  At that time, he stated that the 
first time he had injured his knee was in Vietnam in 1970.  
He said that he was told he had arthritis in 1971, and that 
he never hurt the knee after service.

d.  Paraphimosis

Service medical records reflect that the veteran was treated 
in December 1968 for a urethral discharge with a diagnosis of 
non-specific urethritis.

January 1970 service medical records show treatment for 
multiple venereal warts completely encircling the enclosure 
of the foreskin.  The veteran underwent a circumcision later 
that month.

In January 1970, the veteran had complaints of infection at 
the site of the circumcision.  He reported bleeding from the 
site in February 1970.

March 1970 records reflect that there was swelling proximal 
to the glans.  He was diagnosed with paraphimosis.  The 
condition was later noted to be improved, and on 
consultation, was found not to be paraphimosis, but edematous 
“walk” post circumcision, which would generally decrease in 
swelling.

Examination of the veteran's genito-urinary system in August 
1971, revealed that the system was normal.

The veteran was diagnosed with postoperative circumcision 
without sequela at a February 1991 examination. 

During a hearing before the undersigned Board member in April 
1993, the veteran indicated that he was circumcised in 
service, but that he still got LGV.

e.  Mouth ulcers

Service medical records contain no treatment for or diagnosis 
of mouth ulcers.

The veteran's mouth and throat were normal on examination at 
separation in August 1971.

In August 1990, the veteran was seen at a VA medical facility 
with complaints of a sore in his mouth for eight  days.  He 
was diagnosed with aphthous stomatitis.

VA ear/nose/throat examination in February 1991 revealed that 
the veteran had multiple recurrent episodes of apthous 
ulcers.  He was diagnosed with a history of chronic mouth 
ulcers, apthous type.

The veteran indicated at his hearing before the undersigned 
Board member in April 1993, that he had mouth ulcers since 
service on a recurrent basis.

f.  Bronchitis/residuals of tuberculosis

The veteran was seen in December 1968, February 1970, and 
June 1970 with complaints of a sore throat, chest pain, cough 
and headache.  He was variously diagnosed with an upper 
respiratory infection, and viral syndrome. 

The veteran had a normal chest X-ray in January 1969.

The veteran had positive Tine tests in March, September, and 
December 1969.  Examination of the chest was normal.  In a 
report from the March 1969 test, it was noted that the 
veteran had contact three years earlier with his sister-in-
law, who was positive for tuberculosis.

In September 1969, the veteran was seen with a coughing 
spell.  Physical examination revealed that the veteran's 
chest was clear.  Impression was bronchitis.

In a report of medical history, the veteran was noted to have 
a positive Tine test in March 1969, and no active disease.

On examination in August 1971, at separation, the veteran's 
lungs were evaluated as normal.

VA examination of the veteran was conducted in February 1991.  
At that time, he had no respiratory symptoms. 

The veteran was afforded a personal hearing before the 
undersigned Board member in April 1993.  At that time, he 
reported that he had a positive Tine test for tuberculosis in 
service, and that at the time he got bronchitis.  He 
indicated that it was his belief that any chronic respiratory 
disorder he now had was a result of the tuberculosis in 
service.

g.  Nevus of the cheek

Service medical records contain no evidence of treatment 
regarding a nevus of the cheek.

The veteran's skin and neck were evaluated as normal during 
his separation examination in August 1971.

The veteran was afforded a VA dermatological examination in 
February 1991, at which time a pigmented nevus on the left 
upper cheek was noted.

During his hearing before the undersigned Board member in 
April 1993, the veteran attributed the diagnosed nevus of the 
cheek to a shaving problem.

h.  Osteochondritis

Service medical records do not indicate treatment for or 
diagnosis of osteochondritis.

In May 1971, the veteran was seen with complaints of knee 
pain for two months.  X-rays of the right knee showed that 
the joint was normal except for some irregularity of the 
medial femoral condyle.  There was an area just beneath the 
patella where the cortex of the femur appeared depressed.  It 
was noted that no separate fragment as with an 
osteochondritis dissecans could be seen.  Impression was 
question of cortical injury to femur.  Six days later, a note 
was added that the veteran's knee was probably normal.

The spine and musculoskeletal system were found to be normal 
on examination at separation in August 1971.

The veteran presented testimony at a personal hearing before 
the undersigned Board member in April 1993.  At that time, he 
said that he had not been diagnosed with osteochondritis 
dissecans, but rather with arthritis.

i.  Hearing loss 

At entry into service, pure tone thresholds, in decibels, 
were measured as follows:




HERTZ




500
1000
2000
3000
4000

RIGHT
0
0
-5
--
-5

LEFT
5
0
0
--
5




The veteran was afforded an audiological examination at 
separation from service, at which time pure tone thresholds, 
in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000

RIGHT
10
5
5
10
10

LEFT
15
5
5
10
10


During his personal hearing before the undersigned Board 
member, the veteran reported that he had hearing loss due to 
his ears popping when riding in B-52’s while in service.  He 
said that he was given ear protection, but never had time to 
put it in.  He said that he could feel his hearing loss, 
because he has to talk loudly or scream when talking to 
himself.

j.  Refractive error

In May 1967, at entry into service, the veteran was seen for 
a routine eye refraction examination.  It was noted that he 
already had glasses for near sightedness, but that he did not 
enjoy wearing them.  His uncorrected vision was 20/200 
bilaterally, and his present glasses corrected to 20/20 in 
the right eye and 20/25 in the left.  He was issued new 
glasses correcting his vision to 20/20 bilaterally.  
Impression was myopic astigmatism bilaterally, and mild 
vertical imbalance.

Service medical records show that in October 1969, the 
veteran was prescribed glasses.

At separation, in August 1971, the veteran gave a history of 
eye trouble, described as defective visual acuity corrected 
with corrective lenses.  Examination revealed that his vision 
was correctable to 20/20 bilaterally. 

k.  Residuals of eye injuries

Service medical records demonstrate that the veteran was 
treated in March 1970 for a sore right eye.  It was noted 
that he had been playing basketball and was hit in the right 
eye.  There were minor lacerations below the right eye.  
Examination of the eye was within normal limits.  Impression 
was minor laceration with no evidence of eye trauma.

In April 1971, the veteran was seen with complaints of pain 
in the left eye for two hours.  Examination was normal, and 
there were no visual changes.  The veteran reported the same 
symptoms with the other eye in the past.  

His eyes were found to be normal on general, and 
ophthalmoscopic examination at separation in August 1971.  
His pupils were noted to be equal and reactive and he had 
normal ocular motility.

The veteran recalled, during a personal hearing before the 
undersigned Board member in April 1993, that he had been hit 
in one eye while playing basketball in service.  He could not 
remember which eye had been injured, and thought the other 
one had been injured in a fight, which he said happened 
several times after returning from Vietnam, when he was 
stationed in North Dakota.  He said that his symptoms now 
included crying for no reason.

l.  Ingrown facial hairs

Of record is an AF Form 422, Physical Profile Serial Report, 
dated in October 1969.  It is indicated on the form that the 
veteran was not to shave his face with a blade or electric 
razor for the duration of his stay in Vietnam.

February 1970 records indicate that the veteran was examined 
in conjunction with a claim for a shaving excuse.  On 
examination, there was no evidence of skin infection, 
folliculitis, or pseudofolliculitis.  The veteran was 
thereafter instructed on proper shaving hygiene.

In June 1971, the veteran was noted to have ingrown hair of 
the beard.

The veteran's skin and face were found to be normal on 
examination in August 1971, at separation.

During a personal hearing before the undersigned Board member 
in April 1993, the veteran stated that he did not shave 
before service, and that he was forced to do so after entry.  
He indicated that his problems with ingrown hairs started 
when he began shaving in service.

m.  Bilateral ankle disabilities

In January 1968, the veteran was seen following a twisted 
right ankle, which occurred playing basketball.  Examination 
revealed no evidence of fractures. 

Service medical records, dated in January 1969, reflect that 
the veteran had a painful swollen left ankle.  It was 
reported that he had sprained that ankle many times playing 
basketball.  Examination revealed tenderness, swelling and 
mild limitation of motion.  Impression was that the veteran 
had a sprain of the ankle.  X-rays were negative.

June 1969 service medical records show that the veteran had a 
swollen left ankle.  He indicated that he had first hurt the 
ankle about two weeks earlier jumping out of a truck, then 
reinjured them coming out of a truck.   Examination revealed 
no swelling or point tenderness and good range of motion.  
Impression was possible strain.

Service medical records reflect that in May 1971, the veteran 
was treated for complaints of bilateral ankle pain and 
swelling following basketball.  It was also indicated that he 
had a history of minor athletic injuries.  Examination of the 
ankles was negative, and impression was pain, etiology 
unknown.

The veteran's feet, lower extremities, and musculoskeletal 
system were all normal on examination in August 1971.

During VA examination in February 1991, the veteran reported 
some aching in the past in the ankles.  Examination was 
within normal limits. 

At his personal hearing before the undersigned Board member, 
the veteran reported that he was seen for his ankles about 
the first year he was in service.  He said that he had a 
number of injuries playing on the squad basketball team, and 
that the condition worsened after he hurt his knee.




n.  Jungle rot/tinea pedis

The evidence of record at the time of the March 1988 RO 
decision will be summarized below.

Service medical records indicated treatment for a rash on the 
left leg, diagnosed as eczema, in October 1968.

December 1970 records demonstrated complaints of bilateral 
pretibial itching and excoriation.  He was diagnosed as 
having dermatitis.

No skin problems were found during a separation examination 
in August 1971.

The additional evidence which has been submitted since the 
March 1988 decision will be summarized below.

In an April 1990 statement, the veteran reported that he had 
been evaluated for jungle rot.

August 1990 VA out-patient treatment records show that the 
veteran had symptoms of an itchy rash on the feet for several 
days.  He gave a history of fungus, and was diagnosed with 
tinea pedis.

The veteran’s skin was found to be normal on dermatological 
VA examination in February 1991.

During a hearing before the undersigned Board member in April 
1993, the veteran said that he still had skin problems of the 
feet, and that it was a constant problem.

o.  Agent Orange 

Service medical records reflect no treatment for or diagnosis 
of Agent Orange residuals.

In an April 1990 statement, the veteran asked that he be 
given the financial means to pay for treatment of Agent 
Orange. 

In a December 1990 statement, the veteran indicated that a 
physician had told him that Agent Orange would interfere with 
the natural healing process of his body.

The veteran was afforded a VA dermatological examination in 
February 1991, at which time the examiner concluded that he 
did not see anything that he would consider related to 
exposure to Agent Orange. 

During a personal hearing before the undersigned Board member 
in April 1993, the veteran claimed that he was exposed to a 
chemical defoliant, which caused his skin to burn.

Analysis

a.  New and material evidence claims

The United States Court of Veterans Appeals (Court) has held 
that there is a statutory duty to assist the veteran applying 
to reopen a claim where the evidence before the Board raises 
sufficient notice of pertinent records which may constitute 
new and material evidence sufficient to justify reopening.  
Ivey v. Derwinski, 2 Vet.App. 320 (1992).  The Board is 
satisfied that VA has met its duty to assist the veteran in 
the development of evidence pertinent to his claim pursuant 
to 38 U.S.C.A. § 5107.

The Board has reviewed the evidence submitted since the March 
1988 decision by the RO and has determined that this 
additional evidence is not both new and material.  
Accordingly, the veteran's claim is not reopened and the 
March 1988 RO decision denying entitlement to service 
connection for a personality disorder and jungle rot/tinea 
pedis remains final.

Following notification of an initial review and determination 
by the RO, a notice of disagreement must be filed within one 
year from the date of mailing of notification, followed by a 
timely substantive appeal; otherwise, the determination 
becomes final and is not subject to revision absent new and 
material evidence, 38 U.S.C. § 4005 (1982); 38 C.F.R. 
§§ 3.104, 19.192 (1987).

If new and material evidence is presented or secured with 
respect to a claim which has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of 
the claim.  38 U.S.C.A. § 5108.

New and material evidence means evidence not previously 
submitted to agency decision makers which bears directly and 
substantially upon the specific matter under consideration, 
which is neither cumulative nor redundant, and which by 
itself or in connection with evidence previously assembled is 
so significant that it must be considered in order to fairly 
decide the merits of the claim. 38 C.F.R. § 3.156(a).

“New” evidence is that which is not merely cumulative of 
other evidence of record.  “Material” evidence is that which 
is relevant to and probative of the issue at hand and which 
must be of sufficient weight or significance (assuming its 
credibility) that there is a reasonable possibility that the 
new evidence when viewed in the context of all the evidence, 
both new and old, would change the prior outcome.  Cox v. 
Brown, 5 Vet.App. 95 (1993).  

The evidence submitted since the March 1988 RO decision 
includes (1) VA and private medical records, and (2) 
statements from the veteran. 

The VA and private medical records show that the veteran is 
currently diagnosed with a personality disorder, most 
frequently borderline personality disorder.  The new records 
also show that the veteran was diagnosed with tinea pedis in 
August 1990, and found to not have a skin disorder of the 
feet in February 1991.  These records are all “new” in the 
sense that they were not previously considered.  The records 
are not, however, “material.”  This is so in the case of the 
personality disorder because such a condition is not 
considered a disability under the law, 38 C.F.R. § 3.303(c) 
(1996).  In the case of the skin disorder of the foot, the 
new records are not material because they do not indicate 
that the currently diagnosed condition is in any way related 
to service.  A grant of service connection is predicated on 
there being a currently diagnosed disorder and of there being 
medical evidence that the disorder is related to service, 
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), Rabideau v. 
Derwinski 2 Vet.App. 141, 142-143 (1992).  Since the new 
records do not show that he both has a current disability and 
that that disability is related to service, the new records 
raise no reasonable possibility of changing the prior 
denials, and are not found to be both “new” and “material.”  
Evans v. Brown, 9 Vet.App. 273 (1996).

As the Board found above, new and material evidence has not 
been submitted to reopen the previously denied claims of 
entitlement to service connection for jungle rot/tinea pedis 
or entitlement to service connection for a personality 
disorder; accordingly, the claimant’s appeal must be denied.  
38 C.F.R. §§ 3.104(a), 3.156(a).

b.  Service connection claims

Section 5107 of Title 38, United States Code unequivocally 
places an initial burden upon the claimant to produce 
evidence that his claim is well grounded; that is, that his 
claim is plausible.  See Grivois v. Brown, 6 Vet.App. 136, 
139 (1994); see Grottveit v. Brown , 5 Vet.App. 91, 92 
(1993).  Because the veteran has failed to meet this burden, 
the Board finds that his claims for service connection for 
hypertension, arthritis of the knees, paraphimosis, mouth 
ulcers, residuals of tuberculosis, to include bronchitis, a 
nevus on the neck, osteochondritis dissecans, hearing loss, 
refractive error, residuals of bilateral eye injuries, 
ingrown facial hairs, bilateral ankle disabilities and 
residuals of exposure to Agent Orange are not well grounded 
and should be denied.

Where the determinative issue involves a question of medical 
diagnosis or medical causation, competent medical evidence to 
the effect that the claim is plausible or possible is 
required.  See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).  
The claimant does not meet this burden by merely presenting 
his lay opinion because he is not a medical health 
professional and does not constitute competent medical 
authority.  See Espiritu v. Derwinski, 2 Vet.App. 492 (1992).  
Consequently, his lay assertions cannot constitute cognizable 
evidence, and as cognizable evidence is necessary for a well 
grounded claim, see Tirpak v. Derwinski, 2 Vet.App. 609, 611 
(1992), the absence of cognizable evidence renders a 
veteran's claim not well grounded.

In order for a claim to be well grounded, there must be 
competent evidence of current disability (a medical 
diagnosis), of incurrence or aggravation of a disease or 
injury in service (lay or medical evidence), and of a nexus 
between the in-service injury or disease and the current 
disability (medical evidence.) Caluza v. Brown, 7 Vet.App. 
498, 506 (1995).  

The evidence above shows that the veteran was treated in 
service for injuries to the knees and ankles, that he had a 
positive Tine test for tuberculosis, that he was excused from 
shaving because of ingrown facial hair, and that he was 
provisionally diagnosed with paraphimosis on one occasion.  
Further, as he is a Vietnam veteran, Agent Orange exposure 
may be presumed, 38 C.F.R. § 3.307(a)(6)(iii) (1996).  
Finally, the record demonstrates that the veteran is 
currently diagnosed with hypertension, arthritis of the 
knees, mouth ulcers, and a nevus of the neck.

The Board notes further that refractive error of the eye is 
not a disease or injury within the meaning of applicable 
legislation 38 C.F.R. § 3.303(c) (1996). 

Additionally, in this case, there is no competent medical 
evidence of record linking currently diagnosed hypertension, 
arthritis of the knees, mouth ulcers, or a nevus on the neck 
to a disease or injury of service origin.  Further, there is 
no evidence that the veteran currently suffers from 
paraphimosis, residuals of tuberculosis, to include 
bronchitis, osteochondritis dissecans, hearing loss, 
residuals of bilateral eye injuries, ingrown facial hairs, an 
ankle disability, or residuals of exposure to Agent Orange.  
In other words, the veteran's claims are predicated on his 
own opinion.

As it is the province of trained health care providers to 
enter conclusions which require medical opinions as to 
causation, see Grivois, the veteran's lay opinion is an 
insufficient basis upon which to find this claim well 
grounded.  See Espiritu.  Accordingly, as a well grounded 
claim must be supported by competent medical evidence, not 
merely allegations, see Tirpak, the veteran's claims for 
service connection for hypertension, arthritis of the knees, 
paraphimosis, mouth ulcers, residuals of tuberculosis, to 
include bronchitis, a nevus on the neck, osteochondritis 
dissecans, hearing loss, refractive error, residuals of 
bilateral eye injuries, ingrown facial hairs, bilateral ankle 
disabilities and residuals of exposure to Agent Orange must 
be denied as not well grounded.

In reaching this determination, the Board recognizes that 
many of the issues are being disposed of in a manner that 
differs from that used by the RO.  The Board therefore 
considered whether the veteran has been given adequate notice 
to respond, and if not whether he has been prejudiced 
thereby.  See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).

In light of the veteran’s failure to meet his initial burden 
in the adjudication process, the Board concludes that he has 
not been prejudiced by the decision to deny his appeal.  In 
such a situation, the Board is not denying service connection 
on the merits, but rather is finding that the veteran has 
failed to meet his obligation of presenting a claim that is 
plausible, or capable of substantiation, at this time.

If the veteran or his representative can secure competent 
medical evidence that he currently suffers from hypertension, 
arthritis of the knees, paraphimosis, mouth ulcers, residuals 
of tuberculosis, to include bronchitis, a nevus on the neck, 
osteochondritis dissecans, hearing loss, refractive error, 
residuals of bilateral eye injuries, ingrown facial hairs, 
bilateral ankle disabilities or residuals of exposure to 
Agent Orange which are linked to service, such evidence may 
be used in the filing of another claim.

In reaching its decision, the Board notes that the Court has 
held that there was some duty to assist the veteran in the 
completion of his application for benefits under 38 U.S.C.A. 
§ 5103(a) (West 1991 and Supp. 1997), depending on the 
particular facts in each case.  Robinette v. Brown, 8 
Vet.App. 69 (1995); Beausoleil v. Brown, 8 Vet.App. 459 
(1996); as modified by Epps v. Brown, 9 Vet.App. 341, 344 
(1996), wherein the Court found there was a duty to further 
assist in the development of the evidence only when the 
veteran has reported the existence of evidence which could 
serve to render a claim well grounded.  The facts and 
circumstances of this case are such that no further action is 
warranted.


ORDER

New and material evidence not having been submitted to reopen 
claims of entitlement to service connection for jungle 
rot/tinea pedis and entitlement to service connection for a 
personality disorder, the claims are denied.

The veteran not having submitted well grounded claims for 
entitlement to service connection for hypertension, arthritis 
of the knees, paraphimosis, mouth ulcers, residuals of 
tuberculosis, to include bronchitis, a nevus on the neck, 
osteochondritis dissecans, hearing loss, refractive error, 
residuals of bilateral eye injuries, ingrown facial hairs, 
bilateral ankle disabilities and residuals of exposure to 
Agent Orange, the claims are denied.


REMAND

a.  Lymphogranuloma venereum

In regard to the claim for entitlement to an increased rating 
for lymphogranuloma venereum (LGV), the Board notes that the 
veteran was last afforded a VA examination to determine the 
severity of his condition in February 1991.  At that time, 
the examiner found no evidence of venereal warts.

During a hearing before the undersigned Board member in April 
1993, the veteran reported that LGV gave him skin lesions 
intermittently for two to three weeks at a time.

In this regard, the Board notes that VA’s duty to assist 
includes examination of the veteran during an active stage of 
a skin disorder, Ardison v. Brown, 6 Vet.App. 405 (1994).  
The Board notes that the RO was requested to schedule the 
veteran for a new examination in the prior remand, and 
according to the record, the RO was aware of that request.  
In a June 1997 supplemental statement of the case, the RO 
indicated that notice had been received that the veteran was 
uncooperative with further examination.  However, no such 
notice is of record.  Therefore, and in light of Ardison, 
reexamination of the veteran is warranted.

b.  Psychiatric disorder 

Service connection for PTSD requires medical evidence 
establishing a clear diagnosis of the disorder, credible 
supporting evidence that the claimed in-service stressor(s) 
actually occurred, and a link, established by the medical 
evidence, between current symptomatology and the claimed in-
service stressor(s).  38 C.F.R. § 3.304(f) (1996).

In the case of any veteran who engaged in combat with the 
enemy in active service with a military, naval, or air 
organization of the United States during a period of war, 
campaign or expedition, VA shall accept as sufficient proof 
of service connection of any disease or injury alleged to 
have been incurred in or aggravated by such service 
satisfactory lay or other evidence of service incurrence or 
aggravation of such injury or disease, if consistent with the 
circumstances, conditions, or hardships of such service, 
notwithstanding the fact that there is no official record of 
such incurrence or aggravation in service, and, to that end, 
shall resolve every reasonable doubt in favor of the veteran.  
Service connection of such injury or disease may be rebutted 
by clear and convincing evidence to the contrary.  The 
reasons for granting or denying service connection in each 
case shall be recorded in full.  38 C.F.R. § 1154(b).  In 
this regard, the Board has concluded that the record 
demonstrates that the veteran was in combat with the enemy 
while in service, as confirmed by his service administrative 
records showing that the veteran was exposed to standoff 
rocket attacks. 

The record further shows that the veteran has been diagnosed 
with a number of psychiatric disorders, including PTSD, and 
chronic paranoid schizophrenia, on a provisional basis.  
Other examiners have determined that the veteran does not 
suffer from PTSD, including a VA examiner who stated that the 
veteran's reports of combat were not consistent with his 
military record. 

Here, the veteran has alleged stressors including coming 
under attack while in Vietnam, and a rape which he reports 
occurred while stationed in North Dakota.

The Board notes that the RO has not developed the veteran's 
claim so as to make findings regarding whether supporting 
evidence has been received that the claimed in-service 
stressor(s) actually occurred, to include a determination as 
to whether the claimed stressors were consistent with the 
veteran's confirmed combat, or referring non-combat related 
stressors to U.S. Armed Services Center for Research of Unit 
Records (USASCRUR) in an attempt to verify them.  In this 
respect, the Board acknowledges that the information provided 
by the veteran probably is not as complete as the USASCRUR 
will need to verify the existence of the veteran’s claimed 
stressors.  

Nevertheless, the provisions of the VA Adjudication Procedure 
Manual M21-1 (Manual M21-1) pertaining to the adjudication of 
PTSD claims provide that, “where records available to the 
rating board do not provide objective or supportive evidence 
of the alleged in service traumatic stressor, it is necessary 
to develop this evidence.”  Manual M21-1, Part VI, 7.46(f)(2) 
(emphasis added).  Accordingly, as the development outlined 
in Manual M21-1 includes providing the information submitted 
by the veteran to the USASCRUR, such development is 
mandatory.

The Board notes further that the criteria for rating 
psychiatric disabilities was changed effective November 7, 
1996.  Under the new criteria, mental disorders are to be 
consistent with the Diagnostic and Statistical Manual of 
Mental Disorders (DSM) IV.  38 C.F.R. § 4.125 (1996).  
Previously, mental disorders were evaluated pursuant to DSM 
III, 38 C.F.R. § 4.125 (1995).  At the time VA adjudication 
of this case began, DSM-III-R criteria for PTSD had been 
incorporated by the VA Adjudication Procedure Manual, M21-1.  
DSM-III-R provides that an essential feature of a diagnosis 
of PTSD is the development of characteristic symptoms 
following an “event that is outside the range of usual human 
experience and that would be markedly distressing to almost 
anyone, e.g., serious threat to one’s life or physical 
integrity; . . . or seeing another person seriously injured 
or killed as the result of an accident or physical violence.”  
DSM-III-R at 247-48.  However, the diagnostic criteria for a 
stressor now in effect for VA adjudication under DSM-IV 
differ substantially from those in DSM-III-R.

DSM IV defines stressors as a traumatic event in which both 
of the following were present:

(1) the person experienced, 
witnessed, or was confronted with an 
event or events that involved actual 
or threatened death or serious 
injury, or a threat to the physical 
integrity of self or others.

(2) the person’s response involved 
intense fear, helplessness, or 
horror.  

Quick Reference to the Diagnostic Criteria from DSM IV 
(Michael B. First, M.D., editor, 1994).  The Court has 
recently addressed the effect of the change to DSM IV on 
claims for PTSD in Cohen v. Brown, No. 94-661 (March 7, 
1997).  In that case, the Court pointed out that the 
requirement that a stertor be outside the range of usual 
human experience that would evoke significant symptoms of 
distress in almost anyone had been dropped in DSM IV.  The 
Court made the following holding:

. . . the Court takes judicial notice of the 
effect of this shift in diagnostic criteria.  
The major effect is this:  the criteria have 
changed from an objective (“would evoke. . . 
in almost anyone”) standard in assessing 
whether a stressor is sufficient to trigger 
PTSD, to a subjective standard.  The criteria 
now require exposure to a traumatic event and 
a response involving intense fear, 
helplessness, or horror.  A more susceptible 
individual may have PTSD based on exposure to 
a stressor that would not necessarily have 
the same effect on “almost anyone.”  The 
sufficiency of a stressor is, accordingly, 
now a clinical determination for the 
examining mental health professional.

Cohen, slip. op. at 38-39.

In light of this change, the Board notes that where the law 
or regulation changes after a claim has been filed or 
reopened but before the administrative or judicial appeal 
process has been concluded, the version most favorable to the 
veteran applies unless congress provides otherwise.  Karnas 
v. Derwinski, 1 Vet.App. 308 (1991).  Thus, the Board is of 
the opinion that the claim must be returned for consideration 
by the RO under the new criteria.

Finally, the veteran should be made aware that evidence of 
non-combat stressors may be obtained from sources other than 
service medical records, although a veteran's testimony, by 
itself, remains an insufficient basis upon which to grant 
service connection for PTSD, Moreau v. Brown,  9 Vet.App. 389 
(1996).

c.  Unemployability

In light of the fact that two of the veteran's claims 
regarding entitlement to service connection and entitlement 
to an increased evaluation are to be remanded, the Board 
finds that adjudication of the claim for entitlement to a 
total disability rating for compensation purposes on the 
basis of individual unemployability should be deferred 
pending final disposition of those claims.

Therefore, pursuant to VA’s duty to assist the appellant in 
the development of facts pertinent to his claim under 
38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1996), the Board 
is deferring adjudication of the issues of entitlement to an 
increased evaluation for lymphogranuloma venereum, 
entitlement to service connection for a psychiatric disorder, 
to include PTSD, and entitlement to a total disability rating 
for compensation purposes on the basis of individual 
unemployability pending a remand of the case to the RO for 
further development as follows:

1.  The RO should request the veteran to 
identify all physicians who have treated 
him for psychiatric disorders or LVR in 
the recent past.  After obtaining any 
necessary authorization, the RO should 
then obtain medical records from all 
sources identified by the veteran which 
are not already of record.

2.  The RO should request from the 
veteran a statement containing as much 
detail as possible regarding any and all 
stressful events to which he was exposed 
in service.  He should be asked to 
provide specific details of the claimed 
stressful events to the best of his 
ability.  The veteran's statement should 
include dates, places, detailed 
descriptions, units of service, duty 
assignments, as well as the names, units 
of assignment and any other identifying 
information concerning other individuals 
involved in the events.  He should also 
be requested to provide any corroborating 
evidence, to include lay statements from 
parties with knowledge of the alleged 
events.

In this respect, the Board takes this 
opportunity to inform the veteran that 
the United States Court of Veterans 
Appeals (Court) has held that asking the 
veteran to provide the underlying facts, 
i.e., the names of individuals involved, 
the dates, and the places where the 
claimed events occurred, does not 
constitute an impossible or an onerous 
task.  Wood v. Derwinski, 1 Vet.App. 190, 
193 (1991).

3. After obtaining the foregoing 
requested information from the veteran, 
the RO should forward it together with 
any documents in which the veteran 
relates stressor information, copies of 
the veteran's medical records (on file), 
and a copy of his record of service (DD 
Form 214) to the USASCRUR, 7789 Cissna 
Road, Suite 1, Springfield, Virginia 
22150, in an attempt to verify any 
claimed stressor.  Any information 
obtained is to be associated with the 
claims file. 

4.  Following receipt of the USASCRUR’s 
report, and the completion of any 
additional development warranted or 
suggested by that agency, the RO should 
prepare a report detailing the nature of 
any in-service stressful event, which is 
either consistent with the veteran's 
combat, or otherwise verified by the 
USASCRUR. This report is then to be added 
to the claims file. 

5.  The RO should thereafter schedule the 
veteran for a psychiatric examination by 
a board of two VA psychiatrists who have 
not previously seen or treated him.  All 
appropriate studies, including PTSD sub 
scales are to be performed.  The claims 
file and a copy of this remand must be 
made available to and reviewed by the 
examiners prior to completing their 
examinations.  In determining whether or 
not the veteran has PTSD due to an in-
service stertor, the examiners are hereby 
notified that only the verified history 
detailed in the reports provided by the 
USASCRUR and/or the RO may be relied 
upon.  

If the examiners believe that PTSD is the 
appropriate diagnosis they must 
specifically identify which stressor(s) 
detailed in the USASCRUR’s and/or the 
RO’s report is/are responsible for that 
conclusion.  Any and all opinions 
expressed must be accompanied by a 
complete rationale.  The examiners must 
assign a Global Assessment of Functioning 
(GAF) Score which is consistent with the 
American Psychiatric Association’s 
Diagnostic and Statistical Manual of 
Mental Disorders and explain what the 
assigned score means.

The examiners should also detail any 
other psychiatric diagnoses and render an 
opinion as to whether it is at least as 
likely as not that those diagnoses are 
etiologically related to the personality 
disorder with which the veteran was 
diagnosed in service.

6.  Following completion of the 
foregoing, the RO should review the 
claims file to ensure that all of the 
foregoing development has been completed 
in full.  In particular, the RO should 
review the psychiatric examination report 
to verify that any diagnosis of PTSD was 
based on the verified history provided by 
the USASCRUR and/or the RO.  

If the examiners relied upon a history 
which was not verified, that examination 
must be returned as inadequate for rating 
purposes.  The Board emphasizes that the 
Court has held that a diagnosis of PTSD, 
related to service, based on an 
examination which relied upon an 
unverified history, is inadequate.  West, 
7 Vet.App. at 77.

7.  The RO should also arrange for an 
examination of the veteran by a 
dermatologist in order to determine the 
extent of severity of his service-
connected lymphogranuloma venereum with 
groin pain, condylomata, postoperative 
circumcision. The claims file and a 
separate copy of this remand must be 
made available to and reviewed by the 
examiner prior to conduction and 
completion of the examination.  The 
examiner should conduct all testing 
deemed necessary.  The result of all 
testing should be fully reported.   Any 
opinion(s) expressed must be accompanied 
by a complete rationale.  Pursuant to 
Ardison the examination should take 
place when the veteran's service-
connected condition is in an active 
stage.

8.  After undertaking any development 
deemed appropriate in addition to that 
specified above, the RO should 
readjudicate the issues of entitlement to 
service connection for a psychiatric 
disorder, to include PTSD, entitlement to 
an increased rating for lymphogranuloma 
venereum, and entitlement to a total 
disability rating for compensation 
purposes on the basis of individual 
unemployability.

If the benefits sought on appeal are not granted to the 
veteran’s satisfaction, the RO should issue a supplemental 
statement of the case.  A reasonable period of time for a 
response should be afforded.  Thereafter, the case should be 
returned to the Board for final appellate review, if 
otherwise in order.  By this remand, the Board intimates no 
opinion as to any final outcome warranted.  No action is 
required of the veteran until he is notified by the RO.  

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 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.





		
	ROBERT E. SULLIVAN
	Member, Board of Veterans’ Appeals


NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1997), a decision of the Board of Veterans’ 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans’ Judicial Review Act, Pub. 
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).  The date 
that appears on the face of this decision constitutes the 
date of mailing and the copy of this decision that you have 
received is your notice of the action taken on your appeal by 
the Board of Veterans’ Appeals.  Appellate rights do not 
attach to those issues addressed in the remand portion of the 
Board’s decision, because a remand is in the nature of a 
preliminary order and does not constitute a decision of the 
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) 
(1996).

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1997), a decision of the Board of Veterans' 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans' Judicial Review Act, 
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).  The 
date which appears on the face of this decision constitutes 
the date of mailing and the copy of this decision which you 
have received is your notice of the action taken on your 
appeal by the Board of Veterans' Appeals.
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