BVA9501640 
DOCKET NO.  93-01 987     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Denver,
Colorado

THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent
for right ankle disability.

2.  Whether new and material evidence has been submitted to
reopen a claim for service connection for psychiatric disability.

REPRESENTATION

Appellant represented by: Colorado Department of Social
Services

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Margaret L. Peak, Associate Counsel

INTRODUCTION

The veteran had active service from February 1965 to December
1968.  This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Denver, Colorado.  The claim
is now ready for appellate review.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his right ankle disability has
worsened, that it is painful and unstable, causing him to fall
frequently, and that after standing or walking for five or six
hours he is incapacitated for three days.  He maintains that his
claim for service connection for psychiatric disability should be
reopened and allowed based on the submission of current treatment
records.  He claims that he had auditory hallucinations while in
service, and that he was misdiagnosed as having a personality
disorder.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), 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 preponderance of the evidence is against a
disability rating in excess of 10 percent for residuals of a
right ankle fracture, and that no new and material evidence has
been submitted to reopen a claim for service connection for an
acquired psychiatric disorder.

FINDINGS OF FACT

1.  All relevant evidence necessary for equitable disposition of
the veteran's claims has been obtained by the RO.

2. Malunion of the right os calcis has produced no more than
moderate deformity, and the resulting limitation of motion is no
more than moderate at this time.

3.  No unusual or exceptional disability factors have been
presented.

4.  The RO denied service connection for an acquired psychiatric
disorder in May 1973; no basis to reopen the claim was found in
Board decisions in 1987 and 1990, or in the January 1992 decision
of the RO.

5.  Evidence submitted since the 1973 denial of service
connection consists of records of treatment from 1971 to the
present for substance abuse and psychiatric disorders variously
diagnosed as well as the veteran's testimony at personal hearings
held at the RO in 1984 and 1993.

6.  The evidence submitted since the most recent decision on the
merits is cumulative and redundant of previously considered
records, and does not provide a reasonable possibility that when
it is viewed with the entire record the outcome will be altered.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent
for residuals of a fracture of the right os calcis with arthritic
changes have not been met.  38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.41, 4.42, Part 4,
Codes 5003, 5271, 5273 (1993).

2.  Evidence submitted to reopen a claim for service connection
for an acquired psychiatric disorder is not new and material and
the claim is not reopened.  38 U.S.C.A. § 5108, (West 1991); 38
C.F.R. § 3.156(a) (1993).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran is seeking a disability rating in excess of
10 percent for right ankle disability, classified as residuals of
a fractured right os calcis with arthritic changes and service
connection for psychiatric disability.  As an initial matter, the
Board finds his claims to be "well-grounded" within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991).  That is, he has presented
claims that are not implausible.  Murphy v. Derwinski, 1 Vet.App.
78 (1990).  In general, an allegation of increased disability is
sufficient to establish a well-grounded claim seeking an
increased rating.  Proscelle v. Derwinski, 2 Vet.App. 629 (1992).
The Board is also satisfied that all relevant facts have been
properly developed and that no further assistance to the veteran
is required to comply with the duty to assist him mandated by 38
U.S.C.A. § 5107(a) (West 1991).

I.  Increased Rating

The veteran is seeking a disability rating in excess of
10 percent for residuals of a fracture of the right os calcis
with arthritic changes.  In accordance with 38 C.F.R. §§ 4.1,
4.2, 4.41 and 4.42 (1993) and Schafrath v. Derwinski, 1 Vet.App.
589 (1991), the Board has reviewed the service medical records
and all other evidence of record pertaining to the history of
right ankle.  The Board has found nothing in the historical
record that would lead it to conclude that the current evidence
of record is not adequate for rating purposes.  Moreover, the
Board is of the opinion that this case presents no evidentiary
considerations that would warrant an exposition of the remote
clinical histories and findings pertaining to the disability at
issue.

In September 1969, the veteran was granted service connection for
residuals of a fractured right ankle from the time of his
separation from service in December 1968.  The disorder was rated
as noncompensably disabling until 1975.  Arthritic changes were
found in the ankle in 1975, and the rating was increased to
10 percent.  The veteran has made numerous claims for an
increased rating since then, however, the rating has remained at
10 percent.

His most recent request to increase his rating was received in
April 1991.  The RO denied the claim in the January 1992 action
herein appealed.  At his hearing on appeal, the veteran claimed
that his ankle disability had worsened.  He stated that the ankle
was painful and unstable, causing him to fall frequently.  He
stated that after five or six hours of walking or standing, he
was unable to walk on the ankle for three days.  Transcript of
Hearing at 6 (Feb. 25, 1993).

Following the hearing, the RO scheduled the veteran for an
orthopedic examination.  The veteran was unable to appear for
this examination until August 1994.  At that time, he complained
that his feet would ache after walking for eight hours.  He
stated that he took Tylenol, which helped.  On physical
examination there was slight enlargement in the posterior medial
inferior malleolus of the right ankle.  Range of motion was
described as within normal limits.  Dorsiflexion was to
20 degrees, and plantar flexion was to 40 degrees, with
symmetrical eversion.  There was no pain on direct compression of
the ankle.  The veteran's gait was within normal limits with
symmetrical swing and stance phase.  He exhibited good ankle,
knee, and hip motion.  The old, healed calcaneal fracture
appeared unchanged on X-ray, and there was no change in the
degenerative disease.

Following review of this report, the RO confirmed and continued
the denial of an increased rating for right ankle disability.
The Board agrees.

Disability ratings are determined by applying the criteria set
forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1993).  The Board attempts
to determine the extent to which the veteran's service connected
disability adversely affects his ability to function under the
ordinary conditions of daily life, and the assigned rating is
based, as far as practicable, upon the average impairment of
earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38
C.F.R. §§ 4.1, 4.10 (1993).

Here, the RO has rated the veteran's disability as residuals of a
right os calcis fracture with arthritic changes under Diagnostic
Code (DC) 5273 of the Rating Schedule.

That code refers to malunion of the os calcis or astragalus.  The
ratings are, 10 percent for moderate deformity, and 20 percent
for marked deformity.  When the veteran's ankle was first rated
as 10 percent disabling, it was due to arthritis, established by
X-ray findings, that was attributed to the original fracture.
Traumatic arthritis is rated as for degenerative arthritis, which
is rated on the basis of limitation of motion of the affected
joint.  38 C.F.R. Part 4, Codes 5010, 5003.  Limitation of motion
of the ankle is rated under DC 5271, as 10 percent disabling when
moderate, and 20 percent disabling when marked.

Where there is a question as to which of two evaluations is to be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating.  Otherwise, the lower rating will be assigned.  38 C.F.R.
§ 4.7.  Here, reference to the report of the most recent VA
examination of the veteran's ankle shows that neither marked
deformity, nor marked limitation of motion is present.  In fact,
the examiner described the range of motion in that joint as
within normal limits.  Therefore, the 10 percent rating is
correct for the present time.

There is no indication in the record that the current schedular
evaluation for residuals of a right os calcis fracture with
arthritic changes is inadequate to evaluated the impairment of
the appellant's earning capacity due to the disability at issue,
and it does not present such an exceptional or unusual disability
picture as to render impractical the application of the regular
schedule of standards.  Therefore, the provisions of 38 C.F.R.
§ 3.321 relating to extraschedular evaluations are not applicable
here.  The Board has also considered all other potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not
they have been raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).  The Board finds no section
that provides a basis upon which to assign a higher disability
evaluation.

II. New and Material Evidence to Reopen a Claim for a Psychiatric
Disorder.

The remaining issue is whether the veteran has submitted new and
material evidence to reopen a previously denied claim for service
connection for acquired psychiatric disability.

The veteran's original claim was received in 1969, and was for
injuries to both ankles.  Review of his service medical records
showed that he was treated for various physical ailments,
including the ankle fracture discussed earlier.  He also had one
episode of acute anxiety or depression, for which he was
psychologically evaluated.  The diagnosis given in 1965 was,
personality, inadequate, chronic, moderate, manifested by lack of
capacity to profit from past experiences and in dealing with
minor stressful situations.  His predisposition for such a
personality disorder was found to be "[m]arked, with a
longitudinal background history of inadequate responses to normal
social demands and in relationship to employment."  No further
indication of psychiatric complaints or findings is found in
subsequent service medical records.

The veteran's first explicit claim for service connection for
"mental problems 1966-67, nervous condition" was received in
December 1971.  He failed to report for the examination first
scheduled, so the first post-service VA psychiatric examination
is from April 1973.  At that time, he stated that he had been
treated at a mental health clinic for two years as an outpatient,
and was taking Thorazine and Mellaril with some good effect.  A
neurological examination was "essentially negative."  The
examining neuropsychiatrist concluded that the diagnosis of
inadequate personality made in service was not strictly correct,
but that the veteran did suffer from a personality disorder.  The
more correct diagnosis was thought to be schizoid personality.
The veteran was described as very introspective and withdrawn,
having very poor interpersonal relationships and a tendency to
autistic thinking.

In the May 1973 rating decision, the RO stated that the veteran's
nervous condition was considered a constitutional or
developmental abnormality, and service connection was denied for
schizoid personality.  He was notified of this decision by letter
dated May 24, 1973.  No notice of disagreement with that decision
was filed, and it was not until April 1975 that he sought to
reopen the claim.  A claimant has one year in which to file a
notice of disagreement.  If none is received in that period, the
RO's decision becomes final.  38 U.S.C.A. § 7105(b),(c) (West
1991).

If new and material evidence is presented or secured with respect
to a claim that has been disallowed, then the claim will be
reopened and its former disposition reviewed.  38 C.F.R. § 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).  Further, the United States
Court of Veterans Appeals, in Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991), held that material evidence will provide a
"reasonable possibility" that when it is viewed with the entire
record, the outcome will be altered.

Since the May 1973 denial of service connection for a nervous
disorder, the veteran has made numerous applications to reopen
the claim.  Twice he has appealed RO findings of no new and
material evidence to this Board.  In a 1987 decision, the Board
found that the May 1973 decision of the RO was well supported by
the evidence then of record, and that evidence received since
then did not change the material facts on which it was based.
That evidence included reports of examinations, hospitalizations
and outpatient treatment all of which took place subsequent to
1973.  The Board noted that while the record was amplified and
expanded by the submission of these records, no specific finding
of acquired psychiatric disability had been made during service,
and the earliest documented findings of an acquired psychiatric
disorder after service took place after the termination of the
appropriate presumptive period.  The veteran's testimony at his
first hearing on appeal was considered, however, it was his
statement at that hearing that the first treatment he received
after service was 18 months to two years later.  Transcript of
Hearing at 3 (Aug. 7, 1984).

A subsequent attempt to reopen the claim was denied by the RO,
and upheld by the Board in a decision of January 1990.  The
evidence submitted to reopen the claim consisted of reports of
hospitalizations from 1987 on, and did not tend to show the
development or worsening of acquired psychiatric disability in
service or within a year thereafter.

The most recent request to reopen this claim was received in
April 1991.  Since then the veteran has submitted records of
hospitalizations and outpatient treatment from 1990 to 1993, and
testified at a second hearing at the RO in February 1993.  From
these records it is amply clear that the veteran presently
suffers psychiatric disability.  However, none of the evidence
submitted, with the exception of the veteran's personal
testimony, ties the onset of acquired psychiatric disability to
his period of service or within a year thereafter.

At his hearing, the veteran asserted that the diagnosis of
personality disorder in service was incorrect, Transcript of
Hearing at 3 (Feb. 25, 1993), and that he experienced an acquired
mental disease and incompetence both in the service and
immediately thereafter.

The United States Court of Veterans Appeals (Court) has noted
that lay evidence, such as a veteran's sworn testimony, may not
be summarily disregarded, and, unless sufficiently rebutted, may
serve to place the evidence in relative equipoise, thus entitling
the veteran to the benefit of the doubt.  Cartright v. Derwinski,
2 Vet.App. 24, 25, (1991).  However, the unsupported assertion of
a lay person as to medical causation can have no probative value,
since lay persons are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992).  Lay evidence is
useful only insofar as it describes a veteran's symptoms, which
may then be analyzed by appropriate medical authority.  Here, the
veteran's assertions as to the nature and onset of acquired
psychiatric disability are not supported by the medical records.

From a review of the veteran's statements and testimony in his
own behalf, it appears that he believes the denials of his claim
constitute a denial by the VA that he suffers psychiatric
disability.  However, the fact of this disability is not in
question.  The record shows that he claims to have been found
disabled by reason of schizophrenia by the Social Security
Administration (SSA), and has been receiving disability benefits
from that agency since 1974.  The Board has not sought the
records upon which SSA based its decision because there is
nothing in the record to suggest that they would be any more
pertinent to the veteran's claims than those which are already of
record.

What remains fatal to his claim is the absence of a diagnosis of
acquired psychiatric disability in service, or a showing of the
manifestation of acquired psychiatric disability within a year
thereafter.  As noted earlier, in order to reopen previously
denied claims, a veteran must submit new and material evidence;
that is, evidence that is not merely cumulative of other evidence
in the record, is relevant to and probative of the issues at
hand, and is of sufficient weight to present a responsible
possibility that the new evidence, when viewed in conjunction
with the old, would change the outcome.  Sklar v. Brown, 5
Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993);
Colvin v. Derwinski, 1 Vet.App. 1171, 174 (1991).  The evidence
presented is no more than cumulative, and therefore, the request
to reopen the claim remains denied.

ORDER

The claim for a disability rating in excess of 10 percent for a
right ankle disability is denied.

The evidence submitted to reopen a claim for service connection
for an acquired psychiatric disorder is not new and material, and
the request to reopen is denied.

          ROBERT E. SULLIVAN
          Member, Board of Veterans' Appeals

(CONTINUED ON NEXT PAGE)

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

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