Citation Nr: 0002660	
Decision Date: 02/03/00    Archive Date: 02/10/00

DOCKET NO.  98-01 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUES

1.  Eligibility to a permanent and total disability rating 
for pension purposes.

2.  Entitlement to service connection for depression.

3.  Entitlement to service connection for a cardiovascular 
disorder.

4.  Entitlement to a compensable rating greater for residuals 
of a fracture of the right forearm with instability of the 
right thumb and metacarpal joint with moderate degenerative 
changes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. Strommen, Associate Counsel


INTRODUCTION

The veteran served on active duty from August 1969 to March 
1972.

This case comes before the Board of Veterans' Appeals (Board) 
from a rating decision rendered in March 1997, in which the 
Jackson, Mississippi, Regional Office (RO) of the Department 
of Veterans Affairs (VA) denied the veteran's claim of 
entitlement to a compensable rating for residuals of a 
fracture of the right forearm with instability of the right 
thumb and metacarpal joint with moderate degenerative 
changes.  The veteran subsequently perfected an appeal of 
that decision.  A video conference hearing on this claim was 
held on July 26, 1999, before Jeff Martin, who is a member of 
the Board and was designated by the chairman to conduct that 
hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991).

In a September 1998 Board decision, this case was remanded to 
the RO for issuance of a statement of the case (SOC) on 
several issues for which the veteran had submitted a timely 
notice of disagreement.  In November 1998 the RO issued 
appropriate statements of the case addressing the veteran's 
claims of entitlement to a permanent and total disability 
rating for pension purposes and entitlement to service 
connection for depression, a sleep disorder, skin 
rashes/lumps, respiratory problems, a cardiovascular 
disorder, abdominal pain, numbness, genital problems, and 
weakness, claimed as secondary to exposure to Agent Orange.  
In December 1998 the veteran submitted a substantive appeal 
for the denial of entitlement to a permanent and total 
disability rating for pension purposes.  He also submitted a 
substantive appeal stating that his claims of entitlement to 
service connection for depression, a cardiovascular disorder, 
post traumatic stress disorder (PTSD), and a skeletal problem 
of both hands, were not secondary to Agent Orange exposure.  
This substantive appeal also noted that his only disorder 
claimed as secondary to Agent Orange was one for subacute 
peripheral neuropathy.  

As the record does not contain a timely notice of 
disagreement or statement of the case with regard to the 
veteran's claims of entitlement to service connection for 
PTSD, skeletal problems of both hands, and subacute 
peripheral neuropathy secondary to exposure to Agent Orange, 
these claims are not on appeal, nor are they in the appellate 
process.  Therefore, they are referred back to the RO for 
appropriate adjudicative action.  

Based on a review of the record, the Board further finds that 
the veteran has not perfected claims of entitlement to 
service connection for depression and a cardiovascular 
disorder secondary to exposure to Agent Orange since he 
explicitly stated on his VA Form 9 that these disorders were 
not being related to his alleged Agent Orange exposure.  
38 C.F.R. § 20.202 (1999).  Accordingly, the Board finds that 
the only issues perfected by the veteran are his claim of 
entitlement to a permanent and total disability rating for 
pension purposes and his claims of entitlement to service 
connection on a direct basis for depression and a 
cardiovascular disorder.  While the November SOC identified 
all the service connection issues as Agent Orange claims, the 
Board notes that the RO provided the veteran with the direct 
service connection regulations and evaluated his claims on 
this basis as well in the reasons and bases.  Therefore, he 
has been provided with a valid SOC for these issues and they 
are properly before the Board for appellate consideration.





FINDINGS OF FACT

1.  The record indicates that the veteran's countable income 
is below the cutoff for income eligibility for pension 
purposes.

2.  There is no medical evidence of record relating the 
veteran's cardiovascular disorder and depression to his 
period of active service.


CONCLUSIONS OF LAW

1.  The veteran's meets the income eligibility requirements 
for an award of permanent and total disability for pension 
purposes.  38 U.S.C.A. §§ 1155, 1502, 1521, 5107 (West 1991); 
38 C.F.R. § 3.262 (1999).

2.  The claims of entitlement to service connection for a 
cardiovascular disorder and depression are not well-grounded.  
38 U.S.C.A. § 5107 (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  Entitlement to a permanent and total disability 
evaluation for pension purposes.

The Board notes that the facts are not in dispute as to 
whether the veteran has a medical disability sufficient to 
qualify as a permanent and total disability for pension 
purposes, the record reveals that his non-service-connected 
cardiovascular disorder is of sufficient severity to render 
him totally and permanently disabled.  The issue at present 
is whether or not the veteran's income exceeds the minimum 
income requirements established in the enforcing regulations 
and laws as a basis for eligibility.  

Although there was some confusion in the record regarding 
whether the veteran's estranged wife is a dependent or not, 
the veteran has asserted that they are estranged and that he 
does not currently provide any support to her.  Accordingly, 
she is not a dependent.  The most recent income information 
provided by the veteran indicates that his only monthly 
income consists of $676.00 per month from the Social Security 
Administration (SSA), which amounts to $8,112.00 annually.  
Of record is a statement from the SSA confirming that this is 
his net payment, with a gross payment of $719.80.  The 
difference in the amounts, $43.80, being payment taken to 
cover his Medicare premium.  The RO denied the claim 
asserting that based on the gross payment of $719.80, his 
annual income is $8,637.60, over the eligibility limit of 
$8,637.00.

Examining the regulations governing countable income from 
SSA, this income is treated as either a charitable donation 
or retirement benefits.  38 C.F.R. § 3.262(f) (1999).  Under 
this regulation, charitable donations from public or private 
relief or welfare organizations are not considered income, 
38 C.F.R. § 3.262(d), and essentially, that portion of the 
benefits representing the amount the veteran contributed 
while working is not income, and 90 percent of the gross 
retirement benefits count as income after the amount the 
veteran has contributed has expired.  38 C.F.R. § 3.262(e) 
(1999).  

In the veteran's case, either none of his income is 
countable, as it is a charitable contribution or it is the 
portion he contributed to SSA while working, or 90 percent of 
his gross SSA benefits is countable income, this amount being 
$7,773.84.  This amount is below the $8,637.00, as is the net 
annual income noted by the SSA.  Even using the gross income 
provided by the SSA, the veteran only exceeds the identified 
income eligibility level by 60 cents.  In any case, examining 
the evidence of record, the Board finds the veteran's 
countable income is below the statutory limit established as 
a cutoff for eligibility, and he meets the income 
requirements for VA pension compensation.  


2.  Entitlement to service connection for a cardiovascular 
disorder and depression.

The threshold question that must be resolved with regard to a 
claim is whether the veteran has met his initial obligation 
of submitting evidence of a well-grounded claim.  See 
38 U.S.C.A. § 5107(a); Anderson v. Brown, 9 Vet. App. 542, 
545 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd. 
78 F.3d 604 (Fed. Cir. 1996) (Table).  A well-grounded claim 
is "a plausible claim, one which is meritorious on its own 
or capable of substantiation.  Such a claim need not be 
conclusive but only possible to satisfy the initial burden of 
[§ 5107(a)]"  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  "The quality and quantity of the evidence required 
to meet this statutory burden of necessity will depend upon 
the issue presented by the claim."  Grottveit v. Brown, 5 
Vet. App. 91, 92-93 (1993).  

Where the determinative issue involves medical causation or a 
medical diagnosis, competent medical evidence to the effect 
that the claim is "plausible" is generally required.  Id. 
at 93.  In order for a claim to be well-grounded, there must 
be competent evidence of a current disability as provided by 
a medical diagnosis; incurrence or aggravation of a disease 
or injury in service as provided by medical or in certain 
circumstances, lay evidence; and medical evidence of a nexus 
between the in-service injury or disease and the current 
disability.  Caluza v. Brown, 7 Vet. App. 498, 506 (1998), 
aff'd. 78 F.3d 604 (Fed. Cir. 1996) (Table).  Alternatively, 
the nexus between service and the current disability can be 
satisfied by medical or lay evidence of continuity of 
symptomatology and medical evidence of a nexus between the 
present disability and the symptomatology.  See Voerth v. 
West, No. 95-904 (U.S. Vet. App. Oct. 15, 1999); Savage v. 
Gober, 10 Vet. App. 488, 495 (1997).  

In addition, combat veterans may use lay testimony as 
acceptable proof of "in-service incurrence or aggravation of 
an 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 such service."  38 U.S.C.A. § 1154(b) (West 
1991).  However, in the present case, there is no evidence 
that the veteran's cardiovascular disorder or depression were 
incurred during combat.  A claim of entitlement to service 
connection for post traumatic stress disorder was addressed 
in a separate decision from which the veteran has not 
perfected an appeal. 

For the reasons discussed below, the Board finds that the 
appellant's claims of entitlement to service connection for a 
cardiovascular disorder and depression are not well grounded.  
Although the RO did not specifically state that it denied the 
appellant's claim on the basis that they were not well 
grounded, the Board concludes that this was not prejudicial 
to the appellant.  See Edenfield v. Brown, 8 Vet. App 384 
(1995) (en banc) (when the Board decision disallowed a claim 
on the merits where the United States Court of Appeals for 
Veterans Claims (Court) finds the claim to be not well 
grounded, the appropriate remedy is to affirm, rather than 
vacate, the Board's decision, on the basis of nonprejudicial 
error).  The Board, therefore, concludes that denying the 
appeal on these issues because the claims are not well 
grounded is not prejudicial to the appellant.  See Voerth v. 
West, No. 95-904 (U.S. Vet. App. Oct. 15, 1999); Bernard v. 
Brown, 4 Vet. App. 384 (1993).  

Where a claim is not well grounded it is incomplete and no 
duty to assist attaches.  38 U.S.C.A. § 5103(a) (West 1991); 
McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997).  However, 
where a claimant puts the VA on notice of the existence of 
evidence which would make the claim well grounded, the VA is 
obliged under 38 U.S.C.A. § 5103(a) (West 1991), to advise 
the claimant of the evidence needed to complete his 
application.  Robinette v. Brown, 8 Vet. App. 69, 77-80 
(1995).  Unlike the situation in Robinette, the appellant has 
not put the VA on notice of the existence of any specific, 
particular piece of evidence that, if submitted, might make 
the claim well grounded. 

The veteran's service medical records do not include any 
reference to treatment for, or complaints of, cardiovascular 
problems or depression.  The first post-service complaints of 
a "nervous condition" occur in a September 1980 application 
for benefits, and no diagnosis of depression until January 
1997, in VA outpatient treatment records, his primary 
diagnosis being PTSD.  None of the medical records in the 
file relate his diagnosed depression to his period of active 
service and the veteran has not asserted adequate evidence of 
continuity of symptomatology to establish a connection back 
to his discharge.  Even assuming continuity of 
symptomatology, there is no medical evidence relating his 
alleged symptoms of depression to his current diagnosis of 
depression.  

As for his claim of entitlement to service connection for a 
cardiovascular disorder, the first medical evidence of 
cardiovascular problems of record occurs in 1987, and there 
is no indication of complaints, treatment or diagnoses of a 
problem prior to this time.  As with the veteran's diagnosed 
depression, there is also no medical evidence of record 
relating his current cardiovascular condition to his period 
of active service.  In fact, in a June 1993 statement of 
record a private physician attributes the severity of the 
veteran's current heart disability to events occurring on his 
job after discharge.  

Given the evidence of record the Board finds that the 
evidence of record fails to establish a nexus between the 
veteran's current cardiovascular disorder and depression and 
his period of active service.  To the extent that the veteran 
contends that such a relationship exists, he is not competent 
to establish this connection.  Medical diagnosis and 
causation involve questions that are beyond the range of 
common experience and common knowledge and require the 
special knowledge and experience of a trained physician.  
Ruiz v. Gober, 10 Vet. App. 352, 356 (1997); Espiritu v. 
Derwinski, 2 Vet. App. 492,  495 (1992); Grottveit v. Brown, 
5 Vet. App. 91, 93 (1993).  Consequently, in the absence of 
competent nexus evidence, the veteran's claims of entitlement 
to service connection for depression and a cardiovascular 
disorder are denied.



ORDER

Entitlement to service connection for a cardiovascular 
disorder and depression is denied.

Eligibility for a permanent and total disability evaluation 
for pension purposes is granted, subject to the laws and 
regulations governing the disbursement of monetary benefits.


REMAND

After a review of the record, it is the opinion of the Board 
that additional development of the evidence should be 
accomplished prior to further consideration of the veteran's 
claim of entitlement to a compensable rating for residuals of 
a fracture of the right forearm with instability of the right 
thumb and metacarpophalangeal (MCP) joint with moderate 
degenerative changes.  

The veteran reports that he has pain in right thumb, wrist 
and hand.  It is established United States Court of Appeals 
for Veterans Claims (Court) doctrine that, in assigning a 
disability evaluation, the VA must consider the effects of 
the disability upon ordinary use, and the functional 
impairment due to pain, weakened movement, excess 
fatigability, or incoordination.  DeLuca v. Brown, 8 Vet. 
App. 202 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 
(1991); 38 C.F.R. §§ 4.40, 4.45 (1999).  However, in the 
present case it does not appear that the RO has considered 
the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999) 
which are relevant in evaluating the severity of the 
disability at issue.  

The Board also notes that the record is not clear as to 
whether or not the veteran's neurological symptoms, to 
include a diagnosis of carpal tunnel syndrome, are related to 
his service connected residuals of a fracture of the right 
forearm with instability of the right thumb and 
metacarpophalangeal (MCP) joint with moderate degenerative 
changes.  

Furthermore, it appears that the most recent VA examination 
given to the veteran was in January 1997.  This report does 
not discuss range of motion in his fingers, provide x-ray 
evidence of his right hand or wrist, nor discuss the degree 
to which the veteran's reported pain impacted his ability to 
move his thumb, hand or wrist, his functional ability or 
whether the thumb, hand or wrist were stable, weak, or easily 
fatigued.  Hence, it is unclear to what extent, if any, pain 
has restricted the veteran's motion or the functional ability 
of the right hand, thumb and wrist, and whether the 
neurological problems complained of and carpal tunnel are 
related to his service-connected disability.  As a result, 
the Board finds that this case must be remanded for another 
examination to include the above noted information.  See 
DeLuca v. Brown, 8 Vet. App. 202 (1995); Arnesen v. Brown, 
8 Vet. App. 432 (1995).  On remand, the veteran should be 
fully informed that his failure to report for his scheduled 
VA examination will result in his claim being denied.  
38 C.F.R. § 3.655 (1999).  The appellant has the right to 
submit additional evidence and argument on the matter or 
matters the Board has remanded to the regional office.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

Additionally, the Board notes that the RO should consider 
whether separate ratings for the veteran's various residuals 
of a fracture of the right forearm are warranted to 
adequately evaluate the veteran's disability.

While the Board regrets the delay involved in remanding this 
case, under the circumstances discussed above, the case is 
simply not ready for appellate review.  To ensure due 
process, and to ensure that the VA has met its duty to assist 
the veteran in developing the facts pertinent to his appeal, 
the case is REMANDED to the RO for the following development:

1.  The RO should notify the veteran that 
if he has any additional lay or medical 
evidence he wishes to submit to support 
his claim he may do so, particularly 
evidence he may have obtained since the 
last remand in September 1998 and which 
may not currently be in the claims file.

2.  The RO should also attempt to secure 
copies of all VA outpatient treatment 
records pertaining to the veteran from 
the VA medical facility in Jackson, 
Mississippi, from July 1997, the date of 
the last such request by the VA.

3.  Upon completion of the above actions, 
the RO should schedule the veteran for a 
VA examination of his right thumb, hand 
and wrist.  The RO should also inform the 
veteran of the consequences of failing to 
report for the scheduled examination.  It 
is very important that the examiner be 
afforded an opportunity to review the 
veteran's claims file prior to the 
examination.  The veteran's right thumb, 
hand and wrist should be examined for 
degrees of both active and passive range 
of motion and any limitation of function 
of the parts affected by limitation of 
motion of the right hand, thumb and 
wrist.  The examiner should also be asked 
to note the normal ranges of motion of 
the right thumb, hand and wrist, were 
applicable.  Additionally, the examiner 
should be requested to determine whether 
the veteran's right hand, thumb and wrist 
exhibit weakened movement, excess 
fatigability, subluxation, or 
incoordination attributable to the 
service-connected disability; and, if 
feasible, these determinations should be 
expressed in terms of the degree of 
additional range of motion lost or 
favorable or unfavorable ankylosis due to 
any weakened movement, excess 
fatigability, subluxation or 
incoordination.  The examiner should also 
be asked to express an opinion on whether 
pain could significantly limit functional 
ability during flare-ups or when the low 
back is used repeatedly over a period of 
time, such as an eight-hour workday.  
This determination should, if feasible, 
be portrayed in terms of the degree of 
additional range of motion lost due to 
pain on use or during flare-ups.  
Finally, the examiner should render an 
opinion as to whether the veteran's 
neurological symptoms, if any, or his 
carpal tunnel syndrome, are related to 
his service-connected residuals of a 
fracture of the right forearm with 
instability of the right thumb and 
metacarpophalangeal (MCP) joint with 
moderate degenerative changes.  

4.  After the development requested above 
has been completed to the extent 
possible, the RO should again review the 
record and consider all the additional 
evidence.  They should also consider 
whether the veteran's residuals should be 
rated as separate disabilities or not.  
If any benefit sought, for which an 
appeal has been perfected, remains 
denied, the veteran and his 
representative should be furnished a 
supplemental statement of the case, and 
given the opportunity to respond thereto 
with additional argument and/or evidence.  

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

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (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.



		
	JEFF MARTIN
	Member, Board of Veterans' Appeals