Citation Nr: 9838205
Decision Date: 11/19/98	Archive Date: 02/02/99

DOCKET NO. 97-21 309         DATE 

On appeal from the Department of Veterans Affairs Regional Office
in St. Paul, Minnesota

THE ISSUE

Entitlement to service connection for peripheral neuropathy as a
residual of exposure to Agent Orange.

REPRESENTATION Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD D. J. Drucker, Associate Counsel

INTRODUCTION

The veteran had active military service from December 1967 to
January 1971. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a December 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office and Insurance
Center (RO & IC) in St. Paul, Minnesota.

The Board notes that in an unappealed March 1982 rating decision,
the RO & IC denied service connection for residuals of Agent Orange
exposure, including numbness in the extremities, as no disability
associated with herbicide exposure was diagnosed. An unappealed
March 1994 rating decision denied service connection for a
bilateral leg condition due to Agent Orange exposure. The RO & IC
made that determination on the basis that 38 C.F.R. 3.309(e) did
not cover the claimed condition.

However, since the denials of the veteran's claims '38 C.F.R.
3.309(e) was amended to allow service connection for acute and
subacute peripheral neuropathy as a residual of Agent Orange
exposure. See 61 Fed. Reg. 57586, 89 (November 7, 1996). Therefore,
in the interest of due process, the Board will review the veteran's
claim of entitlement to service connection for peripheral
neuropathy as a residual of Agent Orange exposure on a de novo
basis.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he has peripheral neuropathy as a
residual of exposure to Agent Orange in service. Reference is made
to the evidence of record and a favorable determination is
requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), has reviewed and considered all of the
evidence and material of record

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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 the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for peripheral neuropathy as a residual of Agent
Orange exposure is a well-grounded claim.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained by the RO & IC.

2. No competent evidence has been submitted to demonstrate that the
veteran has peripheral neuropathy related to his period of military
service, including exposure to Agent Orange.

CONCLUSION OF LAW

The veteran has not submitted evidence of a well-grounded claim for
service connection for peripheral neuropathy as a residual of Agent
Orange exposure. 38 U.S.C.A.  1101, 1110, 1112, 1113, 5107 (West
1991 & Supp. 1998); 38 C.F.R. 3.303, 3.307, 3.309 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking service connection for peripheral neuropathy
as a residual of Agent Orange exposure. The legal question to be
answered, initially, is whether the veteran has presented evidence
of a well-grounded claim; that is, a claim that is plausible. If he
has not presented a well-grounded claim, his appeal must fail with
respect to this claim and there is no duty to assist him further in
the development of

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his claim. 38 U.S.C.A. 5107(a). As will be explained below, the
Board finds that the veteran's claim is not well grounded.

Factual Background

When examined for enlistment into service in November 1967, no
neurologic abnormality was reported and the veteran was found
qualified for active service. Service medical records are entirely
negative for complaints or treatment of a neurologic disorder and
when examined for discharge in January 1971, there was no finding
of neurologic disability. The veteran's Report of Transfer or
Discharge (DD Form 214) indicates that he had service in the
Republic of Vietnam.

Post service, VA hospitalized the veteran from July to August 1971
for treatment of suicidal ideation. When examined at admission,
there was no history of paresthesias, syncope, convulsions, tremors
or involuntary movement and the veteran denied myalgia or
arthritis. Diagnoses included traumatic injury to right hypothenar
eminence with hypesthesia and lacerations of the volar aspect of
the left wrist. Two days later, VA hospitalized the veteran from
August to November 1971 and diagnosed paranoid schizophrenia. There
were no findings referable to peripheral neuropathy.

In January 1972, the RO awarded service connection for residuals of
a fracture of the second metacarpal of the right hand with
hypesthesia. VA hospitalized the veteran from June to July 1972.
The discharge diagnosis was sociopathic personality and there were
no findings referable to peripheral neuropathy.

According to findings of a May 1974 VA orthopedic examination, the
veteran reported injuring his right hand in a fight in service. He
had occasional right hand cramps, but no other history of trauma or
right hand symptomatology and no history of hypesthesia or
paresthesia. There was no hypesthesia or any other kind of sensory
deficit in the hand or fingers.

In January 1982, when VA examined him for residuals of exposure to
Agent Orange, the veteran denied having any effects when initially
exposed and indicated

that he had nerve problems later. The report of a February 1982 VA
neurological examination shows that, while the veteran complained
of tingling of the extremities, this was not confirmed on
examination. He complained of numbness permanently in the fourth
and fifth fingers of his right hand, a small scar was observed on
the hypothenar eminence of the right hand and he said he was told
the 1972 accident caused damage to the nerve and tendon. The VA
examiner said the veteran had an entirely normal neurological
examination.

According to private treatment records, the veteran was seen in
July 1988 with complaints of a one-year hi story of intermittent
left knee swelling and pain. He said his knee problems began in
September 1987 when his left lower leg began to swell, streaks ran
down the anterior portion of the shin and a golf-ball size nodule
below his knee developed. He was unsuccessfully treated with
antibiotics. The veteran denied fever and chills, but complained of
occasional left foot and toe numbness and tingling secondary to
left leg swelling. The assessment was prepatellar bursitis. When
seen in August 1988, the veteran had decreased pain and swelling
and denied any numbness or tingling in his foot. The assessment was
possible fasciitis, otherwise left foot pain of undetermined
etiology. The veteran was seen two weeks later because his left
knee had swollen again. The assessment was possible infectious
prepatellar bursitis.

Private medical records indicate that in January 1989, the veteran
underwent an infrapatellar bursectomy of the left knee that was
grossly infected. The veteran's leg was treated with antibiotics
and in April 1989, his wound was described as healing quite well.

The private records further indicate that in March 1992, the
veteran lacerated his right arm. There was no report of
neurological deficit.

Private treatment records dated in December 1995 reflect that the
veteran was seen with complaints of swelling and erythema of his
left lower leg and the impression was cellulitis. Private hospital
records dated that month show he was hospitalized for treatment of
a chronically swollen, painful left lower extremity. The veteran
was noted to have undergone left leg surgery in January 1989 for an
infrapatellar

bursectomy secondary to recurrent infrapatellar bursitis of
infectious etiology. He reported numbness in the infrapatellar area
of the left lower extremity. The diagnosis was left lower extremity
thrombophlebitis treated with drug therapy.

According to an October 1996 treatment record, Larry A. Lemaster,
M.D., saw the veteran for follow up of left leg numbness and
tingling. The veteran questioned the possibility of Agent Orange as
the etiology of his left leg problem. The record further indicates
that the veteran had complications in that he had a deep venous
thrombosis on that side and surgery on the anterior aspect of his
left lower leg. Dr. Lemaster said Agent Orange was a possibility,
although "this would unlikely be unilateral." The veteran also had
occasional right leg numbness. According to the doctor, determining
the etiology of the veteran's numbness and tingling was a difficult
decision and Agent Orange had to remain on the differential
diagnosis. In a written statement, dated the same day, Dr. Lemaster
reported that the veteran had numbness on the anterior aspect of
both legs, a history of left deep venous thrombosis of the left
lower leg in December 1996 and a history of surgery of the left
lower leg tumor resection in 1987 when the veteran reported that
numbness preceded surgery. The physician was unable to state for
sure that the veteran's neuropathy was secondary to Agent Orange,
but said it was certainly possible.

The veteran underwent VA neurological examination in October 1996
and complained of numbness and red streaks in his lower legs. He
said he had numbness over the lateral aspect of the left lower leg,
a lump just below the left kneecap and red streaks along the medial
aspect of the left lower leg for approximately twenty years. His
left knee lump was removed in November 1987 and his left knee pain
subsided but he still complained of continuous aching pain of the
left knee that worsened during wet, humid weather. Some left leg
numbness and red streaks remained unchanged and some red streaks
over the right lower leg were reported. The veteran said in
November 1995, Dr. Lemaster diagnosed blood clots and bad
circulation of the left leg, medication was prescribed and he was
advised to wear elastic stockings. The veteran denied any other
neurologic symptoms. According to the assessment, the veteran's
complaints of red streaks of the lower extremities were most likely
secondary to a history of deep venous thrombosis and chronic venous
insufficiency. However, neurologic examination

revealed a patch of reduced light touch and pinprick over the
lateral aspect of both legs, more on the left side. There were no
symptoms or finding of radiculopathy and an electromyography (EMG)
and nerve conduction study of the lower extremities were
recommended.

That same day, the veteran underwent VA examination for residuals
of exposure to Agent Orange. He said in the late 1970's or early
1980's, he experienced leg problems, starting with a small mass on
his left knee that gradually enlarged, with numbness in the lateral
aspect of the left lower leg and some in the right lower leg,
swelling in the lower extremities, pain, red streaks and blotches.
A benign tumor was subsequently removed from his knee, but he
developed an infection requiring hospitalization and antibiotic
treatment. His leg improved until the red blotches recurred and
bilateral lower extremity deep venous thromboses were diagnosed and
treated with medication. He continued to have lower extremity
swelling, more on the left than the right, numbness and
discoloration of the skin. In the assessment, the VA physician
indicated that the veteran had complained of peripheral neuropathy
and an EMG had been scheduled.

According to the impression of the VA EMG performed two days later,
there were bilateral ulnar sensory neuropathies that were not able
to be localized and were without evidence of ongoing denervation.
The results were not consistent with a diffuse polyneuropathy,
radiculopathy or myopathy and an abnormal sural response on the
left could be explained by the presence of edema.

In an October 1996 statement, Ethel L. Carlin said that in the
fourteen years she had known the veteran, he always had problems
with his legs, including poor circulation, pain and loss of
feeling.

The veteran was scheduled for a hearing at the RO before the
undersigned member of the Board, but he did not report.
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Analysis

According to 3 8 U.S.C.A. 1110, a veteran is entitled to
disability compensation for disability resulting from personal
injury or disease incurred in or aggravated by service. Even if
there is no record of an organic disease of the nervous system in
service, its incurrence coincident with service will be presumed if
it was manifest to a compensable degree within one year after
service. 38 U.S.C.A.  1101, 1112, 1113; 38 C.F.R.  3.3 07,
3.3 09. While the disease need not be diagnosed within the
presumptive period, it must be shown, by acceptable lay or medical
evidence, that there were characteristic manifestations of the
disease to the required degree. Id.

A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Murphy v
Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than an
allegation, the claim must be accompanied by evidence that
justifies a belief by a fair and impartial individual that the
claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992). Moreover, where a determinative issue involves a medical
diagnosis or medical causation, competent medical evidence to the
effect that the claim is plausible is required. Grottveit v. Brown,
5 Vet. App. 9 1, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). A well-grounded service connection claim generally
requires medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of inservice incurrence or
aggravation of a disease or injury; and medical evidence of a nexus
between an inservice injury or disease and a current disability.
See Epps v. Gober, 126 F.3d 1464 (1997).

The VA has issued final regulations implementing the decision of
the Secretary that a positive association exists between exposure
to herbicides and the subsequent development of chloracne, non-
Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, acute
and subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, multiple myeloma and respiratory cancers. 38
C.F.R. 3.307, 3.309; 59 Fed. Reg. 5106, 07 (February 3, 1994), 59
Fed. Reg. 29723, 24 (June 9, 1994); 61 Fed. Reg. 57586, 89
(November 7, 1996). The term acute and subacute peripheral
neuropathy, for the purposes of 3 8 C.F.R. 3.3 09(e) means

transient peripheral neuropathy that appears within weeks or months
of exposure to an herbicide agent and resolves within two years of
the date of onset. The Secretary has also determined that there was
no positive association between exposure to herbicides and any
other condition for which he has not specifically determined a
presumption of service connection is warranted. 59 Fed. Reg. 341-46
(January 4, 1994).

Under the provisions of 38 C.F.R. 3.309(e) (1998), if a veteran was
exposed to an herbicide agent during active military, naval, or air
service, the diseases set forth in 38 C.F.R. 3.309(e), shall be
service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are
met even though there is no record of such disease during service,
provided further that the rebuttable presumption provisions of
3.307(d) are also satisfied. Further, according to 38 C.F.R.
3.307(6)(iii), a veteran who, during active military, naval, or air
service, served in the Republic of Vietnam during the Vietnam era
and has a disease listed at 3.309(e) shall be presumed to have been
exposed during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not exposed
to any such agent during that service. The last date on which such
a veteran shall be presumed to have been exposed to a herbicide
agent shall be the last date on which he or she served in the
Republic of Vietnam during the Vietnam era. Id.

The veteran has reported numbness and tingling in his extremities;
he has contended that this is a residual of his exposure to Agent
Orange, and that service connection should be granted for
peripheral neuropathy as a residual of exposure to Agent Orange.
Although the evidence shows that the veteran currently has
complained of numbness and tingling, no competent medical evidence
has been submitted to show that this disability is related to
service or any incident thereof. On the other hand, the record
reflects that the veteran's legs were normal on separation from
service and the first post service evidence of record of leg
numbness is from 1988, more than seventeen years after the
veteran's separation from service. It is not shown that the veteran
has or had acute or subacute peripheral neuropathy, the conditions
included within the presumptive provisions of 38 C.F.R. 3.309(e).
In short, no medical opinion or other medical evidence relating the
veteran's numbness and tingling of the extremities to service or
any incident of service has been presented.

The Board points out that numbness was indicated to be a result of
traumatic right hand injury, for which the Board granted service
connection in 1972, and of left leg deep venous thromboses and
edema, that were not disorders among those included in 38 C.F.R.
3.309(e).

The Board further notes that, in support of his claim, the veteran
offers the statement of Dr. Lemaster, his treating physician who
indicated that there was a possibility that the veteran's numbness
and tingling in his extremities was due his exposure to Agent
Orange. However, in his treatment record and statement, the
physician said that he could not state for sure that the veteran's
neuropathy was secondary to Agent Orange, but that it was certainly
possible.

What the veteran requests in this case is that the Board resort to
conjecture in order to find that his peripheral neuropathy
originated in service. However, service connection may not be
predicated on a resort to speculation or remote possibility. 38
C.F.R. 3.102 (1998); see Beausoleil v. Brown, 8 Vet.App. 459, 463
(1996) (on claim to reopen a service connection claim, statement
from physician about possibility of link between chest trauma and
restrictive lung disease was too general and inconclusive to
constitute material evidence to reopen); Perman v. Brown, 5
Vet.App. 237, 241 (1993) (an examining physician's opinion to the
effect that he cannot give a "yes" or "no" answer to the question
of whether there is a causal relationship between emotional stress
associated with service-connected post- traumatic stress disorder
and the later development of hypertension is "non- evidence");
Obert v. Brown, 5 Vet.App. 30, 33 (1993) (physician's statement
that the veteran may have been having some symptoms of multiple
sclerosis for many years prior to the date of diagnosis deemed
speculative); Stegman v. Derwinski, 3 Vet.App. 228, 230 (1992)
(evidence favorable to the veteran's claim that does little more
than suggest a possibility that his illnesses might have been
caused by service radiation exposure is insufficient to establish
service connection); Tirpak v. Derwinski, 2 Vet.App. at 61 1
(service connection claim not well grounded where only evidence
supporting the claim was a letter from a physician indicating that
veteran's death "may or may not" have been averted if medical
personnel could have effectively intubated the veteran; such
evidence held to be speculative); Utendahl v. Derwinski, 1 Vet.App.
530, 531 (1991) (a medical treatise submitted by


an appellant that only raises the possibility that there may be some
relationship between service-connected sickle cell anemia and the veteran's
fatal coronary artery disease does not show a direct causal relationship
between the two disorders such as to entitle the appellant to service
connection for the cause of the veteran's death).

The veteran is certainly capable of providing evidence of symptomatology, but
a layperson is generally not capable of opining on matters requiring medical
knowledge, such as the degree of disability produced by the symptoms or the
condition causing the symptoms. See Robinette v. Brown, 8 Vet. App. 69, 74
(1995); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu, 2 Vet. App. at
494. See also Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994). Here, the
veteran has not submitted any medical opinion or other medical evidence that
supports his claim. The evidence now of record fails to show that the veteran
has numbness or tingling, or peripheral neuropathy, related to service,
including exposure to Agent Orange. Thus, this claim may not be considered
well grounded. 38 U.S.C.A.  1101, 1110, 1112, 1113, 5107(a); 38 C.F.R. 3.3
03, 3.307, 3.309. Since the claim is not well grounded, it must be denied.
See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995).

Although the Board has disposed of the claim of entitlement to service
connection for peripheral neuropathy as a residual of exposure to Agent
Orange on a ground different from that of the RO, that is, whether the
veteran's claim is well grounded rather than whether he is entitled to
prevail on the merits, the veteran has not been prejudiced by the Board's
decision. In assuming that the claim w  'as well grounded, the RO accorded
the veteran greater consideration than his claim warranted under the
circumstances. Bernard v. Brown, 4 Vet. App. 3 84, 3 92-94 (1993).

ORDER

Service connection for peripheral neuropathy as a residual of exposure to
Agent Orange is denied.

WAYNE M. BRAEUER
Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS: Under 3 8 U. S.C.A. 7266 (West 1991 & Supp.
1998), 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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DOCKET NO. 96-13 773A               DATE DEC 17, 1998

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

THE ISSUE

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

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran had active military service from July 1966 to June 1968
and from October 1972 to February 1979. 
The veteran brought a timely appeal to the Board of Veterans'
Appeals (the Board) from an April 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas. The Board remanded the case in January 1998 and
July 1998 because of the veteran's request for a Board hearing at
the RO. In July 1999 correspondence to the Board received at the
Board after the July 1999 remand was issued, the veteran indicated
that he was not requesting a new hearing. The RO then scheduled a
November 1998 hearing date acting upon the Board remand. In an
October 1998 contact with the RO, his representative stated that
the veteran did not want a hearing but did desire to continue his
appeal. The case has recently been returned to the Board for
appellate consideration.

REMAND

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. 5 101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL,
M21-1 (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.

The veteran contends that he has PTSD linked to events during his
Vietnam service of which he has written on several occasions and
offered sworn testimony. The Board in remanding the case previously
did not review the matter on a substantive basis since the veteran
had requested a Board hearing. It is now apparent that an informed
decision on the merits cannot be accomplished at this time in view
of the record that has recently been supplemented with additional
service department records.

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Briefly stated, the record confirms the veteran was sent to Vietnam
in late 1966 as an 11C10 (Infantry Indirect Fire Crewman) and that
the specialty designation was changed to 70A10 (General Clerk)
after he was medically evacuated from Vietnam in early 1967.
Anxiety reaction reported after hospitalization at the time was not
thereafter repeated and PTSD first appears in the early 1990's in
both VA and a local county mental health clinic.

Although the veteran did not receive any decorations that would
allow for a presumption of a stressor's occurrence without further
corroboration, his specialty during Vietnam service, alone, is not
a sufficient basis to rule out combat as claimed. Indeed, the
military records corresponding to his Vietnam service which is not
confirmed in the copy of his personnel records on file would not
exclude some potential for contact with enemy forces, including
rocket and mortar attacks as he has reported. However, his
involvement is not clear from the available information. In
addition, there must be a determination of whether the veteran
engaged in combat with the enemy. Cohen v. Brown, 10 Vet. App. 128,
142-43, 145-49 (1997); Wilkinson v. Brown, 8 Vet. App. 263 (1995).
The veteran has provided information concerning stressors but that
his specific involvement has not been confirmed. Accordingly,
additional development in this regard should be undertaken. See 3
8 C.F.R. 3.304(f) (1996); Moreau v. Brown, 9 Vet. App. 389 (1996);
Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App.
70 (1994); Wood v. Derwinski, 1 Vet. App. 190 (1991).

Further, since the claim was initially adjudicated, VA has adopted
new psychiatric evaluation guidelines for PTSD that coincided with
changes to the rating criteria that were effective in November
1996. The veteran is entitled to have his claim adjudicated under
these provisions or applicable Manual M21-1 provisions or
diagnostic criteria previously in effect whichever are more
favorable to him.

Regarding the occurrence of an inservice stressor, which appears to
be the element on which the RO has now focused, the Board must
point out that the current development guidelines instruct that the
RO should "...always send an inquiry in instances in which the only
obstacle to service connection is confirmation of an

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alleged stressor. A denial solely because of an unconfirmed
stressor is improper unless it has first been reviewed by the ESG
or the Marine Corps." Manual M21-1, Part III, para. 5.14b(5). The
veteran has also reported having been wounded but refusing a Purple
Heart Medal.

The current development guidance also requires that "[a]ny evidence
available from the service department indicating that the veteran
served in the area in which the stressful event is alleged to have
occurred and any evidence supporting the description of the event
will be made part of the record." Manual M21-1, Part 111, para.
5.14a. In addition, a recent VA psychiatric examination in 1997 did
not provide a psychiatric diagnosis whereas an examiner in 1995
reported diagnostic impressions of major depression and PTSD.

Where the record before the Board is inadequate to render a fully
informed decision on the issue under consideration, a remand to the
RO is required in order to fulfill the statutory duty to assist.
Ascherl v. Brown, 4 Vet. App. 371, 377 (1994). Accordingly, the
case is REMANDED to the RO for the following actions:

1. The RO should contact the service department and request another
search for personnel records that correspond to the veteran's first
period of active service, to include any information regarding
wounds and unit duty assignments.

2. The veteran should be asked to identify all sources of treatment
for his PTSD, VA or private, including periods of treatment, dates,
names of treating physicians, and addresses. The RO should obtain
treatment records from all sources identified, which are not
already of record. In particular, the RO should obtain all VA
treatment records to the present time and complete clinical records
from the Kames County Mental Health Clinic.

3. The veteran should again be asked to provide a comprehensive
statement containing as much detail as possible regarding the
stressors to which he alleges he was exposed in service. The
veteran should be asked to provide to the best of his ability any
additional information including, but not limited to, instances of
any combat exposure; detailed descriptions of stressful events,
including all dates, places, and identifying information concerning
any other individuals involved in the stressful events, including
their names, ranks, and units of assignment, the veteran's unit of
assignment at the time of each incident, and any other identifying
detail. The veteran is hereby advised that this information is
wanted to help obtain supportive evidence of the alleged stressful
events. He must be as specific as possible, because without such
details a successful search for verifying information can not be
conducted.

4. Then, the RO should review the claims file and compile
information reported by the veteran concerning his claimed
stressors and forward the information along with the personnel
records to the U.S. Armed Services Center for Research of Unit
Records (USASCRUR, formerly the U.S. Army & Joint Services
Environmental Support Group (ESG)), 7798 Cissna Road, Suite 10 1,
Springfield, Virginia 22150-3197, to attempt to confirm any of the
stressors claimed by the veteran.

5. Following the above, the RO should make a determination as to
whether the veteran engaged in combat, or whether there is credible
supporting evidence that the claimed stressor(s) actually occurred.

5 -

6. If the RO determines that the record establishes, through combat
participation or otherwise, the existence of a claimed stressor or
stressors in service, the veteran should be examined by a VA
psychiatrist who has not previously examined him to determine
whether the veteran has PTSD that is related to the confirmed
stressor(s). The RO must specify for the examiner the stressor or
stressors that it has determined are established by the record. The
psychiatrist should conduct the examination with consideration of
the criteria for PTSD. The examination report should include a
detailed account of all pathology found to be present. If a
diagnosis of PTSD is appropriate, the examiner should specify the
"stressor(s)" that caused the disorder and the evidence relied on
to establish the existence of the stressor(s). The examiner must
also comment explicitly upon whether there is a link between such
stressor or stressors and current symptoms. The report of the
examination should include rationale for all opinions expressed.
All necessary special studies or tests should be accomplished. The
entire claims folder and a copy of this REMAND must be made
available to the examiner for review in conjunction with the
examination.

7. The RO should review the examination report and determine
whether the findings comply with the requirements of paragraph (5)
above. If not, the report should be returned to the examiner to
correct any deficiencies. Stegall v. West, 11 Vet. App. 268 (1998).

6 - 
8. Thereafter, the RO should readjudicate the veteran's claim for
service connection for PTSD, with consideration being given to the
adjudication guidance in Cohen v. Brown.

If the benefit sought on appeal is not granted to the satisfaction
of the veteran, he and his representative should be furnished an
appropriate supplemental statement of the case that reflects the
consideration undertaken and provided the applicable period to
respond. The case should then be returned to the Board for further
consideration, if otherwise in order. By this REMAND, the Board
does not intimate, in any manner, the final outcome warranted with
respect to the matter at issue.

Mark J. Swiatek
Acting Member, Board of Veterans'Appeals

Under 38 U.S.C.A. 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. 20.1100(b) (1998).

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DOCKET NO. 92-25 133                DATE NOV 30, 1998

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

THE ISSUE

Eligibility for payment of attorney fees from past-due benefits.

ATTORNEY FOR THE BOARD

C. Crawford, Associate Counsel

INTRODUCTION

The appellant had periods of active duty for training, including
from June 2, 1990 to June 16, 1990.

In a July 1992 rating action, service connection for a low back
disorder was denied. Within the same month, the Department of
Veterans Affairs (VA) Regional Office (RO) received notice of
disagreement. A statement of the case was issued in October 1992
and within the applicable time thereafter, the veteran perfected
the appeal. On appellate review in October 1993, the Board of
Veterans' Appeals (Board) remanded the claim for additional
development. After completing the requested development, the
veteran's claim was returned to the Board. On appellate review in
May 1996, the Board confirmed and continued the denial for service
connection.

In June 1996, the VA received a May 1996 Fee Agreement between the
veteran and the appellant. In the fee agreement, the veteran
acknowledged that should the claim be successful, he agreed to pay
the attorney 20 percent of any back pay received and authorized the
VA to withhold that amount from his lump sum back pay.

The veteran thereafter appealed to the United States Court of
Veterans Appeals (Court). In August 1996, the Court granted the
Appellant's Motion For Remand And To Stay Further Proceedings,
thereby vacating the Board's 1995 decision and remanding the issue
to the Board for additional development.

In May 1997, the Board remanded the appellant's claim to the RO in
order to comply with due process considerations. Following
completion of this development, in October 1997, the appellant's
claim was referred for an expert medical opinion pursuant to 38
U.S.C.A. 7109 (West 1991). The case thereafter was once again
reviewed by the Board.

In a June 1998 decision, the Board granted the veteran's claim of
entitlement to service connection for a low back disorder. In July
1998, the RO, effectuating the Board's decision, granted service
connection for a herniated nucleus pulposus, L4-5 with early
degenerative changes, post operative and assigned a 20 percent
evaluation, effective from September 9, 1991, to 100 percent,
effective from

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July 20, 1993 (38 C.F.R. 4.30), to 20 percent evaluation, effective
from September 1, 1993.

The record then shows that by an October 1998 letter, the RO told
the veteran that the award amount had been processed and that the
record contained an attorney fee agreement which provided for the
payment of attorney fees by the VA directly from past-due benefits.
The maximum amount of past-due benefits resulting from the award
had been computed as $15,601.00 and 20 percent of that amount was
$3,120.20. The RO told the veteran that the case was being
transferred to the Board for a determination of eligibility for
payment of attorney fees from any past-due benefits and that the
maximum attorney fee payable, $3,120.20, pending a determination by
the Board had been withheld. The veteran was advised that he and/or
his attorney should submit any evidence or argument concerning
payment of attorney fees from past-due benefits directly to the
Board within 30 days. No response has been received.

CONTENTION

Neither the veteran nor his attorney has expressed any contentions
concerning the matter at issue.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1998), 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
the evidence supports the claim of eligibility for the payment of
attorney fees from past-due benefits received from the awarding of
entitlement to service connection

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for a herniated nucleus pulposus, L4-5 with early degenerative
changes, post operative.

FINDINGS OF FACT

1. In May 1996, the Board entered a decision which denied
entitlement to service connection for a low back disorder; the
notice of disagreement leading to the Board's decision was received
subsequent to November 18, 1988.

2. In May 1996, the veteran entered into an Attorney-Client Fee
Agreement with the appellant; the agreement states that the payment
of the attorney fees is contingent on an award of any back-pay
benefits, and is based on the amount of retroactive benefits
awarded.

3. Pursuant to an August 1996 Court Order which vacated the Board's
decision and remanded the issue for additional development, the
Board, in May 1997 remanded the issue for additional development.

4. On July 28, 1998, the RO, effectuating a June 1998 Board
decision, granted entitlement to service connection for a herniated
nucleus pulposus, L4-5 with early degenerative changes, post
operative and assigned a 20 percent evaluation, effective date of
September 9, 1991, to 100 percent, effective from July 20, 1993 (38
C.F.R. 4.30), to 20 percent evaluation, effective from September 1,
1993.

5. The fee set forth in the May 1996 fee agreement is reasonable,
with respect to payment under the agreement based upon the grant of
service connection for a herniated nucleus pulposus, L4-5 with
early degenerative changes, post operative.

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CONCLUSION OF LAW

The criteria for a valid fee agreement between the attorney and the
veteran for representational services before the VA and the Board
have been met; entitlement to attorney fees from past-due benefits
is granted. 38 U.S.C.A. 5904 (West 1991); 38 C.F.R. 20.609 (1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Judicial Review Act (VJRA), Pub. L. 100-687, 102 Stat.
4105 (1988) allows VA claimants to enter into agreements with
attorneys to represent them in proceedings before the VA, as long
as the fee charged is neither "unreasonable" nor 44 excessive."

Attorneys-at-law and agents may charge claimants or appellants for
their services only if (1) a final decision has been promulgated by
the Board with respect to the issue, or issues, involved; as such,
fees may not be charged, allowed, or paid for services provided
before the date of the Board's decision; (2) the Notice of
Disagreement which preceded the Board decision with respect to the
issue, or issues, involved was received by the agency of original
jurisdiction on or after November 18, 1988; and (3) the attorney-
at-law or agent was retained not later than one year following the
date that the decision by the Board with respect to the issue, or
issues, involved was promulgated. All of the foregoing conditions
must have been met. 38 U.S.C.A. 5904(c)(1); 38 C.F.R. 20.609.

As shown above, in this case, by a May 1996 decision, the Board
denied entitlement to service connection for a low back disorder.
Notice of disagreement which preceded that Board decision with
respect of that issue was received subsequent to November 18, 1988.
In addition, it is acknowledged that in May 1996, the veteran
designated the appellant as his representative and the veteran and
attorney entered

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into the fee agreement at that time. Accordingly, the criteria of
38 U.S.C.A. 5904(c)(1); 38 C.F.R. 20.609 are met. Id.

The law and regulations also provide that a valid fee agreement is
required for eligibility for receipt of attorney fees. In this
regard, pertinent law provides that all agreements for the payment
of fees for services of attorneys-at-law must be in writing and
signed by the veteran and the attorney-at-law. The agreement must
include the names of the veteran and attorney, the applicable VA
file number, and the specific terms under which the amount to be
paid for the services of the attorney-at-law or agent will be
determined. In addition, a copy of the agreement must be filed with
the Board within 30 days of its execution. 38 C.F.R. 20.609(g).

In this regard, it is noted that the May 1996 fee agreement
recorded the veteran's VA file number, as well as the name of the
veteran and appellant. It also specified the terms under which the
amount to be paid would be determined. In addition, the documents
were filed with the VA within the same month, within the requisite
30- day time limit. Thus, it is concluded that the attorney
substantially complied with the governing regulation in this
respect, particularly in light of the attorney's immediate filing
of the May 1996 fee agreement and VA receipt of that agreement in
June 1996. As such, the underlying goal of the regulation to
expeditiously notify the Board of his representation was
effectively accomplished.

Concerning the issue of whether the appellant may receive payment
directly by the VA from past-due benefits, the law and regulation
provide that subject to the above- discussed applicable criteria,
the veteran and an attorney-at-law may enter into a fee agreement
providing that payment for the services of the attorney-at-law will
be made directly to the attorney-at-law by the VA out of any past-
due benefits awarded as a result of a successful appeal to the
Board or an appellate court or as a result of a reopened claim
before the VA following a prior denial of such benefits by the
Board or an appellate court only if the following criteria are met:
(1) the total fee payable (excluding expenses) does not exceed 20
percent of the total amount of the

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past-due benefits awarded; (2) the amount of the fee is contingent
on whether or not the claim is resolved in a manner favorable to
the claimant or appellant, i. e., if all or any part of the relief
sought is granted; and (3) the award of past-due benefits results
in a cash payment to a claimant or an appellant from which the fee
may be deducted. 39 U.S.C.A. 5904(d); 38 C.F.R. 20.609(h).

It is noted that "past-due benefits" means a nonrecurring payment
resulting from a benefit, or benefits, granted on appeal or awarded
on the basis of a claim reopened after a denial by the Board or the
lump sum payment which represents the total amount of recurring
cash payments which accrued between the effective date of the
award, as determined by applicable laws and regulations, and the
date of the grant of the benefit by the agency of original
jurisdiction, the Board, or an appellate court. Id.

The criteria proscribed in 38 U.S.C.A. 5904(d); 38 C.F.R. 20.609(h)
are met. First, the total fee payable does not exceed 20 percent of
the total amount of past- due benefits awarded. The May 1996 fee
agreement between the veteran and attorney officially states that
the fee for representation is contingent upon the award of back-pay
benefits by the VA and it further provides that if an award is
made, the fee will equal 20 percent of the total retroactive
benefits payable to the veteran. It is noted that fees which total
no more than 20 percent of any past-due benefits awarded will be
presumed to be reasonable; hence, the requirements of 38 C.F.R.
20.609(e) are also met. See 38 C.F.R. 20.609(f).

Second, the amount of the fee is contingent on whether or not the
claim is resolved in a manner favorable to the claimant or
appellant, that is if all or any part of the relief sought is
granted. As noted above, in July 1998, the RO effectuated the
Board's June 1998 decision which awarded entitlement to service
connection for a low back disorder and then assigned a 20 percent
evaluation, effective from September 9, 199 1, to I 00 percent,
effective from July 20, 1993 (38 C.F.R. 4.30), to 20 percent
evaluation, effective from September 1, 1993. It is also noted that
the

language of the attorney fee agreement clearly makes the payment of
the fee dependent on favorable action taken in the veteran's case
and as previously noted, the claimed benefits were granted.

Third, in view of the foregoing and in conjunction with the October
1998 letter which expressly stated that the amount of past-due
benefits resulted in a lump sum in the amount of $15,601.00, that
the maximum amount for attorney fees payable, 20 percent
($3,120.20), had been withheld, the record clearly shows that the
award of past-due benefits has resulted in a cash payment to the
veteran from which the attorney fee may be deducted.

It is also noted that 38 C.F.R. 20.609(h)(4) provides that the
attorney-at-law must notify the agency of original jurisdiction
within 30 days of the date of execution of the agreement of the
existence of a fee agreement providing for the direct payment of
fees out of any benefits subsequently determined to be past due and
provide that agency with a copy of the fee agreement. Id. In this
case, it is clear from the evidence of record that the RO received
notice of this execution.

Considering the foregoing, the requisite criteria for payment of
fees by the VA directly to the attorney-at-law from past-due
benefits have been met. The total amount payable does not exceed 20
percent, that amount is contingent upon the claim being resolved in
a favorable manner for the veteran and the award of past due
benefits resulted in a lump sum payment to the veteran. 38 U.S.C.A.
5904(d) and 38 C.F.R. 20.609(h).

The regulations also provide that as the past-due benefits are
based on entitlement to service connection for a disability will be
based on the initial disability rating assigned by the RO following
the award of service connection. The sum will equal the payments
accruing from the effective date of the award to the date of the
initial disability rating decisions. The grant of entitlement to
service connection for schizophrenia was assigned an effective date
of September 9, 1991 and was

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effectuated by an July 28, 1998 rating decision. Thus, the
inclusive dates for the payment of benefits arising from that grant
of benefits are from September 9, 199 1, the effective date of the
award to July 28, 1998, the date of the rating decision that
effectuated the grant.

The RO has retained $3,120.20 of the veteran's total past due
benefits pending a determination by the Board for eligibility for
payment of attorney fees from those past-due benefits. It is now
incumbent upon the RO to compute what amount, if any, would be
payable to the attorney.

ORDER

Eligibility for payment by the VA of attorney fees from past-due
benefits is granted, based on the grant of service connection for
a herniated nucleus pulposus, L4-5 with early degenerative changes,
post operative, effective from September 9, 1991 to July 28, 1998.

V.L. Jordan
Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1998), 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

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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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