Smith v. Derwinski

Smith v. Derwinski, 2 Vet. App. 137, decided 1992-01-31.

HOLDAWAY, Associate Judge: Appellant, Morgan L. Smith, appeals a decision of the Board of Veterans’ Appeals (BVA) rendered on March 19,1990. In that decision, the BVA denied appellant entitlement to service connection for bilateral hearing loss. The Court holds that the BVA arbitrarily and capriciously failed to apply 38 U.S.C. § 1154 (formerly § 354) to the facts of this case. Therefore, we vacate the decision of the BVA and remand the case for readjudication.

FACTS

Appellant served his country in the U.S. Navy during World War II and the Korean conflict. Appellant claims his ears were injured during combat in the Philippine Sea in 1943. He served as automatic weapons officer and was exposed to the intense, continuous firing of the eight-inch, five-inch and forty-millimeter guns during World War II. He claims his ears were injured when a five-inch gun was fired only six inches above his head. He states he suffered a complete loss of hearing for three days and went to sickbay where he was treated with medication for the pain. *138Gradually his hearing returned but not to the same level as before. Appellant also claims that his hearing loss was aggravated during his active service in Korea. During the Korean conflict, he served as air defense officer aboard a heavy cruiser and was stationed “topside” where his ears “took a beating” during gunfire, according to appellant. Apart from his duty in service, appellant states he has lived in a low noise environment employed as a banker and an auditor.

The record contains appellant’s service medical records and private medical records. The service medical records reveal appellant underwent nearly eighteen medical examinations over the course of his career in the U.S. Navy. Those examinations, in addition to routine physical examinations, included examinations for entry and separation, examinations to qualify for flying, promotions, and reservist training. Some of the medical examination reports contain no medical findings and note simply that a medical examination took place and that appellant was qualified to perform his duties. The record reveals, however, no fewer than nine whispered and spoken voice hearing examinations over the course of his military career.

Appellant’s first hearing examination was made upon entry into service in June 1941. That examination measured hearing in both ears at 40/40 inches for a watch tick, 20/20 feet for a coin click, 15/15 feet for a whispered voice and 15/15 feet for a spoken voice. The binaural, spoken voice measurement was 15/15 feet. On the line next to the question “Disease or defects” of the ears, the medical examiner listed “none.” In November 1941, appellant’s hearing was examined for flying. Hearing was measured at 20/20 feet for a coin click and 15/15 feet for a whispered voice. A history of “ringing or buzzing, earache, or discharge,” and “severe injuries to head” were denied. A physical examination of January 1943 indicates the same level of hearing as upon the entrance examination, and no disease or defects were noted. A physical examination of April 1943 revealed the same level of hearing as upon entry into service. A July 1943 physical examination report indicates his right and left ear were “normal” and hearing was 15/15 feet in both ears. An examination of November 1944, the last examination before separation to inactive duty status as a reservist, also indicates the same level of hearing as upon entry, based upon the whisper and spoken voice test. Appellant was released to inactive duty in August 1945.

Appellant was again placed on active duty in October 1950. The active duty entrance examination indicates hearing at a whispered and spoken voice to be 15/15 feet for both ears. Similarly, hearing was noted to be “15/15 [feet]” on release to inactive duty in August 1952.

On September 10,1955, three years after separation from service, appellant underwent audiological testing for hearing loss. His physician stated in a letter to appellant, also dated September 10, 1955, that:

The audiogram shows a typical curve of nerve type deafness with rather marked loss of hearing in the left ear, but also rather advanced loss in the right ear in the high tones.

The outlook is not good but I feel that this condition has existed for some time....

A quadrennial medical examination performed by the U.S. Naval Reserve on August 14, 1956, indicated a whispered and spoken voice hearing level of 15/15 feet for both ears.

In 1963, while in the hospital for neurological testing and treatment (for an unrelated ailment), an ear, nose and throat consultation was made with regard to his decreased hearing. The examiner noted that “the patient had nerve deafness, mainly for high tones, bilaterally but more marked in left than right [ear].”

In his November 17, 1988, claim to the Veterans’ Administration (now Department of Veterans Affairs) (VA), appellant states he suffered complete hearing loss, and had to sell his certified public accountant’s practice because he was unable to serve his clients. He states that he began to receive *139social security benefits at the age of sixty-four.

The VA Regional Office (VARO) denied service connection for hearing loss and tinnitus on April 5, 1989, because “service medical records do not show any diagnosis for these disabilities.”

Appellant appealed the denial by the VARO to the BVA, and submitted a letter, dated July 31, 1989, from his private physician. That physician stated he had performed an audiometric examination of appellant in 1984 which revealed a “moderate sloping to profound sensorineural hearing loss bilaterally.” The physician also stated:

After discussion of his past hearing history, I could find nothing but his extreme exposure to noise during his service with our armed services to indicate a cause for his hearing loss. In other words, I feel that his history of noise exposure during combat is most likely the cause of his hearing loss. It should also be noted that this degree of loss does render a person unable to work in certain job situations.

On March 19, 1990, the BVA denied appellant entitlement to service connection for bilateral hearing loss. The BVA found that there was “no record of acoustic trauma during the veteran’s period of active duty,” and that his hearing was “normal” on examination when he was released from active duty in 1952. The BVA also stated there was no objective medical evidence that appellant’s hearing loss was present within one year after separation from active duty. Morgan L. Smith, BVA 90-12533 (Mar. 19, 1990).

ANALYSIS

A veteran of war is entitled to compensation for any disability “resulting from personal injury suffered ... or for aggravation of a preexisting injury suffered ... in the active military, naval, or air service, during a period of war_” 38 U.S.C. § 1110 (formerly § 310). Congress has directed the Secretary of Veterans Affairs (Secretary) to prescribe regulations to give “due consideration” to the “nature, types and circumstances” of a veteran’s service in claims for service connection. 38 U.S.C. § 1154. In a claim for service connection, if the veteran engaged in combat with the enemy, the adverse effect of not having an official report of in-service injury or disease can be overcome by satisfactory lay or other evidence. 38 U.S.C. § 1154; 38 C.F.R. § 3.304(d) (1991). To that end, Congress directed the Secretary to accept as sufficient proof of service connection, the satisfactory lay or other evidence of service incurrence or aggravation if that evidence is consistent with the “circumstances, conditions or hardships of service.” 38 U.S.C. § 1154.

Section 1154 states:

(a) The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence....

(b) 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, the Secretary 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 ... 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, 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 *140granting or denying service-connection in each case shall be recorded in full.

38 U.S.C. § 1154. The regulations implementing § 1154 are at 38 C.F.R. § 3.304(d).

Of course, the Secretary is not required to accept every bald assertion made by a veteran as to service incurrence or aggravation of a disability. See Wood v. Derwinski, 1 Vet.App. 190 (1991) (the BVA was not required to accept the uncorroborated statements of the veteran regarding service connection). As Congress explained in 1941, when the law which is now § 1154 was enacted, the matter of service connection is a factual determination which must be made by the Secretary based upon the evidence in each individual case; the law does not create a presumption in favor of combat veterans. H.R.Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035. See also Act of December 20,1941, ch. 603, Pub.L. No. 361, 55 Stat. 847 (codified as amended at 38 U.S.C. § 1154). As the legislative history indicates:

The language of the bill has been carefully selected to make clear that a statutory presumption in connection with determination of service connection is not intended. The question as to whether any disability was or was not incurred in active military service is recognized as a question of fact to be determined upon the evidence in each individual case. It is desired to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof.

H.R.Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035.

In the instant case, the BVA specifically relied upon the lack of an official record that was contemporaneous with the alleged trauma as to appellant’s claimed ear injury, and completely disregarded appellant’s own lay evidence, and other evidence of record in determining entitlement to service connection. Such a reliance is in direct conflict with § 1154(b) and 38 C.F.R. § 3.304(d). The BVA may not ignore regulations which the VA has adopted. 38 U.S.C. § 7104(a), (c) (formerly § 4004(a), (c)); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990).

Appellant was a combat veteran of two wars, whose service, according to appellant, included the invasion of Okinawa, two Philippine battles, and over eighteen other raids and invasions. He was a weapons officer and was stationed “topside” and near the ships guns in both his tours of duty. Certainly his claim that his hearing was injured in World War II by a gun blast and was aggravated by gunfire during the Korean war can be considered to be consistent with the “circumstances, conditions or hardships” of his service in both tours of duty. It is the holding of this Court that the BVA erred in failing to apply § 1154 and 38 C.F.R. § 3.304(d) when determining whether appellant was entitled to service connection.

This is not to say that the BVA must automatically grant appellant service connection upon remand. As stated above, § 1154 and 38 C.F.R. § 3.304(d) do not create a presumption in favor of combat veterans in determinations of service' connection. H.R.Rep. No. 1157. In the instant case, there are several in-service whispered and spoken examinations of record which indicate appellant’s hearing was “normal” upon examination. The import of this evidence must be weighed and considered. 38 U.S.C. § 7104 (decisions of the BVA shall be based on the entire record and upon consideration of all evidence and applicable provisions of law and regulation). As Congress indicated in 1941, the question of service connection is a question of fact to be determined “upon the evidence in each individual case.” H.R.Rep. No. 1157.

Also of record is the medical evidence from appellant’s private physicians in 1955 and 1989. The BVA must determine the value and credibility of this evidence. Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) (determining the credibility of evidence is a function for the BVA); Ohland v. Derwinski, 1 Vet.App. 147, 149 (1991) (remanded in part for failure of the BVA to analyze the credibility or probative value of the evidence). The Court notes that the *141BYA has ignored the portion of the physician’s opinion rendered in 1955 that stated appellant’s hearing loss had existed “for quite some time.” The BVA merely states that the 1955 report would have been shown at a period too remote from service to warrant a grant of service connection. The BYA has also ignored the opinion of appellant’s physician in 1989 that appellant’s history of noise exposure was most likely the cause of hearing loss. As the Court has held in previous decisions, the BVA is not free to ignore the opinion of a treating physician. Willis v. Derwinski, 1 Vet.App. 66, 70 (1991).

The BVA also cannot ignore the assertions made by appellant in support of his appeal before the BVA. EF v. Derwinski, 1 Vet.App. 324, 326 (1991). In EF, this Court held that the BVA breached its duty to assist the veteran in part by failing to include issues raised in the documents and oral testimony submitted prior to the BVA decision. EF, 1 Vet.App. at 326. Quoting Myers v. Derwinski, 1 Vet.App. 127, 129 (1991), the Court noted that it is a veteran’s statements on the VA Form 1-9 (“Appeal to Board of Veterans Appeals”) that often frames the issues that must be considered by the Board. EF, 1 Vet.App. at 326. In Myers, the Court held that the BVA is required to review all issues which are reasonably raised from a liberal reading of the VA Form 1-9. Myers, 1 Vet.App. at 130.

In its decision, the BVA noted that the 1956 Reserve quadrennial examination revealed that appellant’s hearing achieved a score of 15/15 feet on a spoken voice hearing test. This examination was performed one year after appellant’s private audiological examination in 1955 indicated appellant suffered from a marked hearing loss. On his VA Form 1-9, appellant states that the 1956 examination could “in no way” be correct in view of the 1955 audiological findings of appellant’s physician. The BVA has neither acknowledged this argument made by appellant nor expressed why it found the 1956 spoken voice examination to be preferable to or more credible than the 1955 audiological examination. The BVA cannot rely only upon the evidence it considers to be favorable to its position, but must review and base its decision upon all the evidence of record. 38 U.S.C. § 7104; Willis v. Derwinski, 1 Vet.App. 63, 66 (1991) (case remanded for BVA to provide “reasons or bases” for apparent dismissal of evidence of record favorable to veteran).

It is the holding of this Court that the BVA erred in failing to apply 38 U.S.C. § 1154 and 38 C.F.R. § 3.304(d) in the determination of this case. The decision of the BVA is VACATED and the case is REMANDED to the Board with the specific direction that it readjudicate the case and apply 38 U.S.C. § 1154 and 38 C.F.R. § 3.304(d). The BVA is to specifically include the lay evidence of appellant in its determination of service connection pursuant to § 1154 and 38 C.F.R. § 3.304(d); it must consider all the evidence of record in rendering its decision, and must provide the reasons or bases for its decision. 38 U.S.C. § 7104; Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

Smith v. Derwinski, 2 Vet. App. 147, decided 1992-01-15.

PER CURIAM: Appellant, Bernard R. Smith, seeks reversal of a January 26, 1990, Board of Veterans’ Appeals’ (BVA or Board) decision which denied his reopened claim for Department of Veterans Affairs (VA) benefits. The BVA found that appellant’s vari-cocele and hemorrhoids were not service connected. On appeal to this Court, appellant argues that the denial of benefits is based on erroneous conclusions drawn from the evidence presented. The Secretary in turn urges the Court to uphold the BVA’s decision, arguing that the BVA’s findings are not clearly erroneous.

In 1987, VA informed appellant that his service records were burned in 1978. Consequently, the positive evidence in favor of appellant consisted principally of his sworn statements and testimony that he was kicked in the groin during service and has suffered since. The BVA concluded that without service medical records to verify that appellant received treatment or a diagnosis while in service, the Board had no choice but to deny him benefits. This is not true; VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence. 38 C.F.R. § 3.303(a). See 38 U.S.C. § 1154(a) (formerly § 354(a)). As we said in Cartright:

[ajppellant’s sworn statement, then, unless specifically found incredible or sufficiently rebutted, may serve to place the evidence in equipoise. The Secretary cannot ignore appellant’s testimony simply because he is an interested party.

Cartright v. Derwinski, 2 Vet.App. 24 (1991).

Furthermore, the BVA decision at hand contains neither an analysis of the credibility or probative value of the evidence submitted by the veteran, nor a statement of the reasons or bases for the Board’s implicit rejection of this evidence. As we noted in Gilbert, a “bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor ‘clear enough to permit effective judicial review,’ nor in compliance with statutory requirements.” Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Appellant here has never been provided with a satisfactory explanation by the BVA as to why his sworn testimony is not “sufficient evidence” of service connection for his varicocele and hemorrhoids, especially why, under “the benefit of the doubt” standard set forth in 38 U.S.C. § 5107(b) (formerly § 3007), the evidence was not at least in relative equipoise, in which case “the law dictates that [the claimant] prevails”. Gilbert, 1 Vet.App. at 55. See Cartright, 2 Vet.App. 24.

The need to supply these reasons or bases is particularly important where, as in appellant’s case, the records have been lost: “where service medical records are presumed destroyed ... the BVA’s obligation to explain its findings and conclusions ... is heightened.” O’Hare v. Derwinski, 1 Vet.App. 365 (1991). Because the Board’s decision fails to provide an adequate explanation for the apparent dismissal of evidence favorable to appellant’s claim and its conclusion that appellant’s impairment is not service connected, the Board’s decision is VACATED and the matter is REMANDED pursuant to section 38 U.S.C. § 7104(d)(1) (formerly § 4004) (1988).

Smith v. Derwinski, 2 Vet. App. 217, decided 1992-02-21.

ORDER

The Board of Veterans’ Appeals (BVA or Board) entered a decision in this case on November 28, 1989, denying service connection for an acquired psychiatric disorder and a left-eye disorder. Service connection *218for each condition had been denied previously by final BVA decisions in September 1977 and December 1985, respectively.

On May 15, 1991, appellant filed his informal brief. On July 17, 1991, the Secretary of Veterans Affairs (Secretary), after receiving an extension of time to file a response, filed a motion to remand the case to the Board for it to determine whether the most recent evidence submitted is new and material, and, if so, to evaluate both the old and the new evidence in connection with appellant’s claim. Following a December 17, 1991, Court order to respond to the motion for remand, appellant on December 31, 1991, opposed the motion, although he does not state any reasons.

The determination as to whether evidence submitted to reopen a previously disallowed claim is new and material under 38 U.S.C. § 5108 (formerly § 3008) is a question of law which this Court reviews de novo. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is “material” if there is a reasonable possibility that the new evidence, viewed in the context of the old, would change the outcome. Ibid. In the present case, the evidence submitted by the veteran to reopen his previously denied claim does not appear to have been material. On consideration of the foregoing, it is

ORDERED, sua sponte, that the parties, not later than 30 days after the date of this order, show cause why the case should not be summarily affirmed on the grounds that there is a lack of new and material evidence to justify reopening the previously disallowed claims. In his response, the Secretary should address whether 38 U.S.C. § 7103(c) (formerly § 4003) would authorize the Board, on its own motion, to readjudicate de novo a previously disallowed claim, when no new and material evidence was presented or secured to “reopen” the claim, in order to determine whether “obvious error” existed in the record of a prior final BVA decision that should be corrected; and, if so, whether that authority is asserted as a basis for the remand sought by the Secretary in this case. It is further

ORDERED, sua sponte, that the Secretary’s motion for remand is held in abeyance pending further order of the Court.

Smith v. Derwinski, 2 Vet. App. 236, decided 1992-03-12.

ORDER

On December 20, 1991, appellant filed a Notice of Appeal (NOA) from a Board of Veterans’ Appeals (BVA) decision that was mailed on July 1, 1991. On January 30, 1992, the Court ordered appellant to show cause why this appeal should not be dismissed for failure to file an NOA within 120 days after the date the BVA decision was mailed. On February 11, 1992, appellant responded to the order, stating that the case should not be dismissed because on September 14, 1991, he mailed his NOA, among other places, to the U.S. Court of Veterans Appeals.

It appears from the envelope containing appellant’s NOA that the Court received the NOA from the Department of Veterans Affairs Regional Office (VARO) rather than from appellant directly. A stamp on the back of appellant’s NOA indicates that it was received by the VARO on September 30, 1991, but the Court did not receive it until December 20, 1991 — 172 days after the BVA decision was mailed. Appellant submitted no evidence demonstrating timely receipt by the Court of an NOA mailed under separate cover and directly to the Court.

The ultimate burden of establishing jurisdiction rests with an appellant. McNutt v. G.M.A.C., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935). To be timely filed under this Court’s rules (U.S.Vet.App. 4) and precedents construing 38 U.S.C. § 7266(a) (formerly § 4066), an NOA must be actually received by the Court within 120 days after the BVA decision is mailed to an appellant. See Elsevier v. Derwinski, 1 Vet.App. 150 (1991); Torres v. Derwinski, 1 Vet.App. 15 (1990). This Court’s jurisdiction derives exclusively from statutory grants of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). Since this appeal from a BVA decision, dated July 1, 1991, was not filed with the Court — notwithstanding its receipt almost 3 months earlier by the VARO on the 91st day after the BVA decision’s mailing — until well beyond the 120th day from the mailing date of the BVA *238decision, it was untimely. See Elsevier, 1 Vet.App. at 152 (to be properly filed, an NOA must be physically received by the Court within 120 days after the date on which the BVA decision was mailed).

Although in Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court extended “the principles of equitable tolling” to cases where the United States is a party, those principles were held inapplicable in that case as they must be here. In Irwin, plaintiffs counsel filed plaintiffs civil claim 15 days after the statutory deadline had passed, because counsel was out of the country when his office received notice of the Equal Employment Opportunity Commission’s dismissal of plaintiffs case. The notice had informed plaintiff that, under 42 U.S.C. § 2000e-16(c), she had the right to file a civil action within 30 days after receipt of the notice. In evaluating the propriety of applying equitable tolling in that case, the Supreme Court concluded that those circumstances amounted to no more than a “garden variety claim of excusable neglect” which did not warrant application of the doctrine. Id. 111 S.Ct. at 458.

This Court has interpreted Irwin as extending the rule of equitable tolling “to the 120-day time limit of 38 U.S.C. § 4066(a) [redesignated § 7266(a) ]”. See Elsevier, 1 Vet.App. at 154. In Elsevier, the Court stated that “[e]quitable tolling applies where ‘despite all due diligence [plaintiff] is unable to obtain vital information bearing on the existence of his claim’ ”, ibid, (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990)) and that “[equitable estoppel may be used to prevent the running of a time limit where the defendant’s conduct has caused plaintiff to delay ... in bringing the action.” Id. at 155 (citing Vadino v. A. Valey Engineers, 903 F.2d 253, 263 (3d Cir.1990)). Furthermore, in Elsevier, the Court declined to extend the doctrine of equitable tolling to the situation before it, in which an appellant had filed an NOA with the BVA instead of with the Court. Ibid. There, “[h]ad appellant not assumed that filing his NOA with the BVA was sufficient, he could have readily determined that his NOA must be filed with this Court to be effective.” Id. at 154. Here, too, appellant could have readily ascertained that his NOA must be filed with the Court since the notice at the end of the BVA decision identifies this Court as the body to which an appellant may appeal. Thus, appellant’s filing his NOA with the VARO prior to the 120-day filing deadline does not provide a basis for application of either equitable tolling or equitable estop-pel so as to give this Court jurisdiction over the matter.

In view of the foregoing and after consideration of appellant’s explanations, this Court finds that the case here does not present the extraordinary and carefully circumscribed conditions necessary to warrant equitable tolling under Irwin. Accordingly, it is

ORDERED, sua sponte, that this appeal is dismissed for lack of jurisdiction.

Smith v. Derwinski, 2 Vet. App. 241, decided 1992-03-12.

KRAMER, Associate Judge, concurring:

While I concur with the majority’s decision to remand the ease to the Board of Veterans Appeals, I write separately to emphasize that despite the lack of evidence in this case regarding what occurred at the precise moment of the accident, the totality of the circumstances surrounding the accident are sufficient to justify a finding of willful misconduct. The record shows that Smith chose to take his motorcycle ride after an evening of drinking, R. 23, 25-29, and while there were no conclusive blood alcohol readings, the emergency room doctor who treated Jeffery Coley reported detecting a “strong odor of alcohol” on Coley’s breath. R. 39. In addition, the Department of the Navy Traffic Accident Report listed both alcohol and “excessive [speed] for conditions” as factors contributing to the accident, R. at 9, and the appellant stated that immediately prior to Smith’s fateful ride, she tried to persuade *247him not to go. R. at 25. Finally, Coley stated that Smith did a number of “wheelies” prior to the accident, and was driving “fast, very fast.” R. at 38. Cf. Lidy v. Film Transit, Inc., 796 F.2d 103 (5th Cir.1986) (circumstances surrounding accident, such as evidence of speeding and the amount of care taken to avoid collision, can be used to determine driver’s level of culpability); Sharp v. Egler, 658 F.2d 480 (7th Cir.1981) (evidence that a driver was speeding and struck a stationary object after driving off road, combined with driver’s admission of drinking, was sufficient to create reasonable finding of wantonness); McDaniel v. Frye, 536 F.2d 625 (5th Cir.1976) (knowledge requirement of wantonness need not be shown by direct proof, but may be shown by adducing facts from which knowledge is a legitimate inference).

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MANKIN, Associate Judge, filed the opinion of the Court, in which IVERS, Associate Judge, joined. KRAMER, Associate Judge, filed a separate concurring opinion.

MANKIN, Associate Judge: Appellant, Cynthia A. Smith (Mrs. Smith), seeks reversal of a May 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision that denied her entitlement to dependency and indemnity compensation (DIC) benefits on the grounds that the death of her husband, an enlisted member of the United States Navy, was the result of his own willful misconduct and not incurred in line of duty. Cynthia A. Smith in the Case of Michael W. Smith, BVA 90-10929, at 6 (May 14, 1990). Because the BVA failed to comply with the requirement of 38 U.S.C. § 7104(d) (formerly § 4004(d)) that its decision provide an adequate statement of reasons or bases for its factual findings and conclusions of law, including its determination that appellant was not entitled to the benefit of the doubt under 38 U.S.C. § 5107(b) (formerly § 3007(b)), we remand the ease to the Board for further adjudication. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

I. BACKGROUND

Instrumentman First Class Michael Wayne Smith (Smith), appellant’s husband, was killed in a motorcycle accident in Sas-sari, Sardinia, Italy on November 3, 1987. Only the general circumstances leading to the accident are known, despite an investigation by the Navy. Precisely how or why the accident happened remains unclear. Several persons, appellant among them, submitted statements to the military authorities describing the events of the night of the accident. Testimony, while not consistent in every detail, suggests a sequence of events as follows.

At the time of his death, Smith was serving aboard the USS ORION, which was stationed in Italy. R. at 7, 57. On the early evening of November 2, 1987, the decedent and a group of his friends, celebrating the ORION’s return from sea duty, gathered for a barbecue at the Smiths’ quarters in Trinita Housing in La Maddale-na. R. at 41. They were joined by Mrs. Smith and the couple’s four year old daughter. Mother and daughter went to bed shortly after dinner, while Smith and his friends continued to talk, listen to music, watch movies on a videocassette recorder, and drink beer. Several of the servicemen fell asleep prior to midnight; Smith and *243Instrumentman Seaman Jeffery S. Coley remained awake. R. at 42. Sometime after midnight, probably around 2:30 a.m., Smith and Coley decided to go for a ride on Smith’s motorcycle. Mrs. Smith awoke and overheard the two men discussing the proposed ride; she advised Smith not to go, but to no avail. R. at 25. The two men left for a predawn motorcycle ride, with Smith driving and Coley riding as passenger. Neither man wore a safety helmet. R. at 42. At approximately 3:00 a.m., the motorcycle left the road in the vicinity of a curve and struck a large rock. Smith suffered severe head injuries and died seventeen hours later. An autopsy of his body revealed fractures of the skull and ribs, with cause of death attributed to massive cranial cerebral trauma. R. at 14-16. Coley suffered serious injuries in the accident, but survived.

On November 4, 1987, the Navy opened an informal investigation into the incident. R. at 24. Based on the physical evidence and the statements of various individuals, the Navy investigator concluded that the accident was caused by Smith’s negligent operation of his motorcycle. R. at 44. He identified four specific negligent factors: 1) consumption of alcohol immediately prior to operating the motorcycle; 2) driving at excessive speed; 3) failure to wear a helmet; and 4) operating the vehicle in a “gross, reckless manner.” Ibid. The investigator further concluded that Smith “was aware of the hazards involved with drinking and driving and not wearing a helmet while operating a motorcycle....” Ibid. Although the investigator had made no express finding that Smith had been intoxicated, he concluded that “Coley’s injuries were the proximate result of assuming a foreseeable risk by accepting a ride on a motorcycle without a helmet that was being driven by an intoxicated person,” that “IMSN Coley was intoxicated at the time of the accident,” and that “IMSN Coley’s injuries were incurred not in the line of duty due to his own misconduct.” Ibid. In accordance with Navy policy regarding death cases, no line-of-duty determination was made concerning Smith’s injuries. See Department of the Navy, Manual of the Judge Advocate General § 0810, at revised page 8-7.

The appellant, as the veteran’s surviving spouse, filed a claim for DIC benefits. R. at 53. In June 1988, the Veterans’ Administration (now the Department of Veterans Affairs) (VA) Regional Office denied her claim on the grounds that Smith’s death was not service connected or in the line of duty, because it was the result of his own willful misconduct. R. at 57, 59; see 38 C.F.R. §§ 3.1(m), (n), and 3.301(a) (1991). A year later, the appellant was afforded a personal hearing at the Regional Office, following which the denial of her claim was reaffirmed. R. at 82. On further appeal, the BVA similarly concluded that Smith’s death “resulted from operation of a motorcycle at excessive speed and otherwise in a reckless manner after having consumed alcoholic beverages,” and “was the result of his own willful misconduct and was not incurred in line of duty.” Smith, BVA 90-10929, at 6.

Upon review, we find that the BVA failed in this case to correctly apply the statutory presumption that an injury incurred during active military service is incurred in line of duty. Further, the BVA failed to adequately address the applicability of VA regulations relating to willful misconduct and to evidence of alcohol consumption in determinations of line of duty and misconduct. Consequently, we remand the case to the BVA for further review in accordance with our authority under 38 U.S.C. § 7252(a) (formerly § 4052(a)).

II. ANALYSIS

A.

The surviving spouse of a veteran who dies from a service-connected injury while in the active naval or other military service is entitled to receive DIC benefits administered by the Secretary of Veterans Affairs. 38 U.S.C. § 1310 (formerly § 410). For such death to be considered service connected, it must result from disability incurred in line of duty. 38 U.S.C. § 101(16). An injury incurred during active naval or other military service “will be *244deemed to have been incurred in line of duty” unless such injury “was a result of the person’s own willful misconduct.” 38 U.S.C. § 105(a); see also 38 C.F.R. § 3.1(m) (1991). Willful misconduct is defined as “an act involving conscious wrongdoing or known prohibited action,” and “will not be determinative unless it is the proximate cause of injury ... or death.” 38 C.F.R. § 3.1(n) (1991). It is undisputed that Smith was in the active naval service at the time of his death. By operation of 38 U.S.C. § 105(a), his injuries are therefore deemed to have been incurred in line of duty unless it is shown that he engaged in willful misconduct, and that such misconduct proximately caused his injuries.

The appellant and the Secretary have expressed opposing views with respect to the nature and effect of the line-of-duty presumption established by 38 U.S.C. § 105(a). The appellant argues that, in view of the statute, her husband’s death is presumed to have been incurred in line of duty; if the VA contends otherwise, it must shoulder the burden of establishing that her husband’s death was the proximate result of his own willful misconduct. Appellant’s Reply Brief at 1-2. In contrast, the Secretary argues that pursuant to 38 U.S.C. § 5107, the burden rests with the appellant “to make at least a prima facie showing that there is a valid claim.” Appellee’s Brief at 11-12. He concedes that 38 U.S.C. § 105(a) establishes a presumption in a claimant’s favor, but argues that the presumption is rebutted once there has been an administrative finding of willful misconduct. Id. at 12-13.

We believe appellant has presented the stronger argument. In Gilbert v. Derwinski, 1 Vet.App. 49, 53-54 (1990), this Court examined the “unique standard of proof” that applies to veterans benefits claims. The Court noted that, in light of the “benefit of the doubt” rule established by 38 U.S.C. § 5107(b), “the preponderance of the evidence must be against the claim for benefits to be denied.” Gilbert, 1 Vet.App. at 54. In this case, appellant is eligible to receive DIC benefits if her husband’s injuries were incurred in line of duty; because he was in the active naval service, his injuries are deemed to have been in line of duty unless one of the exceptions named in 38 U.S.C. § 105 applies. In other words, in all cases section 105 establishes a presumption in favor of a finding of line of duty. If the BVA finds that an exception does apply (in this case, willful misconduct), and denies the claim solely on the basis of such exception, the Board must establish that denial of the claim is justified by a preponderance of the evidence. In evaluating the evidence for and against the claim, the Board must conduct its review mindful of the statutory presumption in the veteran’s favor. Cf. Akins v. Derwinski, 1 Vet.App. 228, 230 (1991) (statutory presumptions may, for some purposes, serve as the functional equivalent of evidence). The BVA decision does not indicate whether the Board accorded any weight whatsoever to the statutory line-of-duty presumption. On remand, the Board must address this issue.

B.

The BVA’s conclusion that Smith’s death was the result of his own willful misconduct was predicated on its finding that his death resulted from operating his motorcycle “at excessive speed and otherwise in a reckless manner after having consumed alcoholic beverages.” Smith, BVA 90-10929, at 6. The Court agrees with the BVA that there exists evidence of record that Smith consumed an undetermined quantity of beer, and that he drove his motorcycle “very fast” and in an . unsafe manner. The record is devoid of direct evidence that any of these circumstances, if they indeed were present, were the proximate cause of the accident that led to Smith’s injuries and death.

The Secretary has promulgated regulations concerning the effect of evidence of alcohol consumption in determinations of line of duty and misconduct. The relevant provision states:

The simple drinking of alcoholic beverage is not of itself willful misconduct.... If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death *245will be considered the result of the person’s willful misconduct.

38 C.F.R. § 3.301(c)(2) (1991).

In finding that Smith had engaged in willful misconduct, the BYA (unlike the Navy investigator) avoided stating that Smith was intoxicated when he climbed onto his motorcycle. Nevertheless, the Board rested its decision in part on its conclusion that Smith had been drinking alcoholic beverages on the night of his death. It supported this finding by citing: 1) Coley’s statement that he, Smith, and the others started drinking soon after arriving at Smith’s house, and continued drinking for most of the evening, R. at 38; 2) a statement given by another sailor present to the effect that the men had each consumed four to five beers during the evening, R. at 26; and 3) appellant’s statement at her June 1989 personal hearing that she had observed her husband drink “maybe two” beers before she and her daughter went to bed. R. at 72. Although vitreous and blood alcohol specimens were drawn fifteen hours after the accident and an autopsy was later conducted on Smith’s body, the examining pathologist rejected the clinical results (vitreous, 0% alcohol; blood from interior vena cava, 0.033 mg/cl alcohol; at autopsy, no smell of alcohol noted on examination of the peritoneal cavity. R. at 14.), as did the BYA, as unreliable indicators of Smith’s condition at the time of his accident. The Board further concluded that, due to consumption of alcohol, Smith’s condition was “incompatible with riding a motorcycle,” basing this conclusion on Mrs. Smith’s statement that she had awakened at about 2:30 a.m., and had told her husband not to go. (The Board apparently surmised that appellant’s warning was based on her own observation of her husband’s alleged impairment; her testimony, however, was silent on this point.) The Board also noted a Department of the Navy Traffic Accident Report which listed “alcohol involved” as one contributing circumstance. R. at 9.

What is noticeably missing from the record is any direct evidence that Smith’s condition was impaired due to consumption of alcoholic beverages. The appellant’s statement that she saw Smith drink “maybe two” beers is the only witness statement that directly addresses the quantity of beer Smith personally consumed. (Coley stated that “We drank most of the evening_ We weren’t guzzling or having drinking contests.... I think we stopped drinking at about 2230 or 2300.”, R. at 38, and another sailor stated that members of the group drank four or five beers, R. at 26. Those statements relate to the group in general, and would be consistent with a finding that Smith drank a greater or a lesser quantity than other attendees.) Not one of the witnesses stated that they observed Smith acting in a manner suggestive of intoxication.- The clinical evidence,- as noted, has been deemed of no value (apparently, no medical interpretation of the test results was submitted by either party). In its decision, the Board did not explain whether it did or did not find that Smith had been intoxicated. If the Board reaches such a conclusion upon remand, it must explain how it did so in light of the evidence, including any pertinent medical authority. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Further, the Board must address the applicability of 38 C.F.R. § 3.301(c)(2).

In similar fashion, the Board concluded that the accident was the proximate result of Smith’s operation of his motorcycle “at an excessive speed and in an otherwise reckless manner.” Smith, BVA 90-10929, at 5. This conclusion is supported by two items of evidence. The first is the Navy accident report, which lists “speed excessive for conditions” as a contributing circumstance. R. at 9. The second is the statement of Coley, who reported:

As soon as we pulled out I knew we shouldn’t have been out. IM1 Smith wasn’t driving bad, he was just going fast, very fast. I didn’t have a chance to look at the speedometer but we were going fast. I asked him to slow down. I wasn’t watching too much where we were going I was trying to hold on. I asked him again to slow down, but he didn’t, he was riding wheelies. The last thing I saw before we wrecked was a *246curve going to the left and us going off the road.

R. at 38. Coley is apparently the only living witness to the accident. The BVA in its decision made no finding as to the probative value of his statement. This omission is, to say the least, rather glaring in light of the evidence that a doctor who examined Coley after the accident “noted a strong order [sic] of alcohol on his breath,” R. at 39, that the investigating officer concluded that he had been intoxicated, and that Coley was himself potentially subject to disciplinary action. R. at 44. Assuming the accuracy and credibility of Coley's statement, the statement says much about his general impressions while riding as Smith's passenger, but notably offers no explanation for the actual cause of the accident. Even if Smith indeed performed “wheelies,” there is no direct evidence that such behavior was actually involved in the accident. Smith may have shown a lack of precaution by choosing to ride without a helmet, but the record does not indicate that he was legally required to wear one, or that he would likely have survived the accident had he done so. Finally, Coley’s statement is brought into question by the testimony of the appellant, who at her June 1989 personal hearing testified that her husband had been a highly experienced motorcycle driver who was careful when he rode with passengers. Here again, the BVA failed to provide appellant with an explanation of the basis on which it reached its factual conclusion that Smith’s death resulted from his “operation of a motorcycle at excessive speed and otherwise in a reckless manner.” Smith, BVA 90-10929, at 6.

III. CONCLUSION

In summary, we find that, although there is evidence that appellant’s deceased husband may not have acted wisely on that fateful night, the BVA did not provide adequate reasons or bases for its finding that Smith engaged in conduct that satisfies the VA’s own definition of willful misconduct, i.e., “deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” 38 C.F.R. § 3.1(n) (1991). The BVA decision under review is “wholly inadequate to support its conclusion.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). Upon remand, the Board is instructed to issue a new decision explaining its conclusions in light of the applicable statutes and regulations. As we stated in Fletcher, however, a remand is not “merely for the purposes of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004). A remand is meant to entail a critical examination of the justification for the decision.” Ibid. If upon remand the Board again concludes that Smith engaged in willful misconduct and that such conduct was the proximate cause of his injuries and death, it must fully support those findings. In addition, it must explain why appellant is or is not entitled to the benefit of the doubt under 38 U.S.C. § 5107(b). Accordingly, the BVA’s decision of May 14, 1990 is VACATED. The case is REMANDED to the BVA for further proceedings consistent with this opinion.

It is so Ordered.

Smith v. Derwinski, 2 Vet. App. 378, decided 1992-04-30.

IVERS, Associate Judge: Appellant, Thomas A. Smith, appeals from a February 4, 1991, Board of Veterans’ Appeals (BVA or Board) decision which refused to reimburse appellant for unauthorized treatment he received at a non-Department of Veterans Affairs (VA) hospital. Appellant, proceeding pro se, argues that the BVA’s decision is clearly erroneous. The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a) (formerly § 4052(a)).

Appellant served in the United States Navy from June 3,1944, until June 1, 1946. He is currently not service-connected for any disorder. On July 23, 1989, a Sunday, appellant was stricken with congestive heart failure. Appellant contacted one of his VA clinic treating doctors who was on duty at Rockford Memorial Hospital and who stated that he could not see him but advised him to go to Swedish-American Hospital. R. at 4. Subsequently, appellant was hospitalized at Swedish-American Hospital from July 23,1989, to July 28,1989, at a total cost of $4,435.70. R. at 5, 8. It is from the costs incurred during this hospital stay that appellant is seeking reimbursement from VA.

Normally a veteran’s disability must be service-connected under 38 U.S.C. §§ 1110, 1131, or 1151 (formerly §§ 310, 331, 351) to receive treatment at a VA hospital. However, a veteran can receive treatment from a VA hospital for a non-service-connected disability, “if [appellant] is unable to defray the expenses of necessary care as determined under section 1722(a) of this title.” 38 U.S.C. § 1710(a)(1)® (formerly § 601(a)(1)®). The record shows that appellant was receiving treatment from the VA clinic at Rockford Memorial Hospital. R. at 4. Since he was not service-connected for his heart condition, the Court assumes that he was receiving treatment in accordance with § 1710®.

However, care received from a non-VA hospital, whether one is service-connected or not, requires authorization pursuant to 38 C.F.R. § 17.50d (1991). Appellant argues that his care was authorized because his VA treating physician had informed him that arrangements were made for him *379to be treated at Swedish-American Hospital. However, the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation. Section 17.50d(a) states:

The admission of a veteran to a non-Department of Veterans Affairs hospital at [VA] expense must be authorized in advance. In the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf is dispatched to the [VA] (1) for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday and holidays, or (2) for veterans in a noncon-tiguous State, territory or possession of the United States (not including Puerto Rico) if facilities for dispatch of application as described in this section are not available within the 72-hour period, provided the application was filed within 72 hours after facilities became available.

Because no authorization was obtained from the VA prior to appellant’s treatment, and the VA was not notified of the emergency within 72 hours, appellant’s only possible source of recovery for his expenses is under 88 U.S.C. § 1728 (formerly § 628) and 38 C.F.R. § 17.80 (1991). Section 1728(a) states:

The Secretary may, under such regulations as the Secretary shall prescribe, reimburse veterans entitled to hospital care or medical services under this chapter for the reasonable value of such care or services (including travel and incidental expenses under the terms and condition set forth in section 111 of this title), for which such veterans have made payment, from sources other than the Department where—

(1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health;

(2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment to make possible such veteran’s entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition; and

(3)Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.

Despite the fact that there was a medical emergency and the federal facility was unavailable, appellant is not eligible for reimbursement from VA for his hospital stay, because he is not service-connected for any disorder or disability, a requirement under § 1728(a)(2).

Upon consideration of appellant’s informal brief, the Secretary’s pleadings, and a review of the Record on Appeal, it is the holding of the Court that appellant has not demonstrated that the BVA has committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the BVA decision satisfies the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly § 3007(b)). See Gilbert v. Derwinski, 1 Vet.App. 49, 53-57 (1990). Summary disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990).

Accordingly, the Secretary’s motion is GRANTED and the BVA decision is AFFIRMED.

Smith v. Derwinski, 2 Vet. App. 429, decided 1992-05-21.

HOLDAWAY, Associate Judge, concurring:

I concur in the result but disassociate myself from those portions of the opinion which discuss duty to assist and equitable tolling.

---

KRAMER, Associate Judge, filed the opinion of the Court, in which STEINBERG, Associate Judge, joined. HOLDAWAY, Associate Judge, concurring in the result, filed a separate opinion.

KRAMER, Associate Judge: The appellant, Edward F. Smith, appeals from a September 14,1989, Board of Veterans’ Appeals (BVA) decision which denied him entitlement to retroactive pension benefits. Upon review of the record, the briefs, the arguments of the parties, and the amicus brief, the Court holds that: (1) the Veterans’ Administration (now the Department of Veterans Affairs) (VA), violated its duty under 38 U.S.C. § 7722(d) (previously contained in § 241(3)) to provide aid and assistance in the preparation of the appellant’s claim; (2) as a consequence of the VA’s violation of its duty under § 7722(d), the one-year filing requirement for a specific request for retroactive pension benefits under 38 U.S.C. § 5110(b)(3)(A) (formerly § 3010(b)(3)(A)) was equitably tolled; and (3) the BVA’s decision that the appellant was not precluded as a result of his disabilities from filing a claim for benefits for at least 30 days from the start of his permanent and total disability, is not clearly erroneous, and therefore, the BVA decision must be affirmed.

I.

The appellant served on active duty in the United States Armed Forces from February 1953 to January 1954. On April 13, 1986, he was admitted to a private hospital for treatment of a large abscess in his left perianal region and for uncontrolled diabetes mellitus. The appellant remained in the hospital for 28 days, undergoing a number of surgical debridements of his abscess and receiving treatment to bring his diabetes under control. Eventually the appellant had a skin graft placed over his abscessed area. The skin graft and diabetes treatment were a success, and the appellant was ultimately discharged from the hospital on May 10, 1986.

Over the next seven months, the appellant lived at home, but visited his doctor quite frequently for abscess treatment follow-up, diabetes control, and treatment for a variety of other ailments. During part of this period (until his wound completely closed), the appellant also had a nurse visit him at his house 3-5 times a week in order to change the dressing on his wound. On December 23,1986, the appellant submitted a VA Form 21-527, “Income-Net Worth and Employment Statement,” noting that he was suffering from diabetes and had been hospitalized for 28 days in April 1986. The appellant also stated on the form that he wished to “reopen [his] pension claim.” R. at 2-4.

On April 20, 1987, the San Francisco, California, VA Regional Office (RO) wrote to the appellant requesting verification of the duration and character of his service. The appellant provided this information on April 27, 1987. On July 10, 1987, the RO sent the appellant a VA Form 21-526, “Veteran’s Application for Compensation or Pension,” for him to “complete ... for our records.” R. at 9. On July 26, 1987, the appellant submitted the completed form.

On September 20, 1988, the RO granted the appellant pension benefits, effective January 8, 1987, the date that the appellant’s VA Form 21-527 was received by the RO. In response, the appellant filed a Notice of Disagreement (NOD) asserting that the pension benefits should be effective April 1986, the date he became totally disabled.

On September 14, 1989, the BVA rendered its decision denying the appellant’s claim for retroactive pension benefits based on an April 1986 effective date. The BVA concluded:

To obtain an award of retroactive disability pension benefits, it must be shown by the evidence of record that the veteran was prevented from applying for benefits by reason of his disability for a period of at least 30 days beginning on the date on which he became permanently and totally disabled. In this case, the inability to apply for benefits is not shown. His hospitalization in April and May 1986 was not extensive, and the medical evidence does not establish the presence of disabilities which prevented] his filing a claim for pension.

*431Edward F. Smith, BVA 90-07101, at 4 (Sept. 14,1991). The appellant subsequently perfected an appeal to this Court.

II.

The effective date of an award of pension benefits is usually the date on which the veteran first filed his claim with the YA. 38 U.S.C. § 5110(a) (formerly § 3010(a)). An exception to this general rule, however, is provided in a case where the veteran

is permanently and totally disabled and ... is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

38 U.S.C. § 5110(b)(3)(B) (formerly § 3010(b)(3)(B)). In such a case, 38 U.S.C. § 5110(b)(3)(A) provides that the effective date of the pension shall be “the date on which the veteran became permanently and totally disabled, if the veteran applied for a retroactive award within one year of such date.” If the veteran fails to apply for a retroactive award within one year of this date, the effective date of the award will be the date of application. 38 U.S.C. § 5110(b)(3)(A) (formerly § 3010(b)(3)(A)).

Both parties agree, and the record plainly shows, that when the appellant requested disability pension benefits, in submitting a VA Form 21-527 to the VA within a year of becoming totally disabled, he did not note or request retroactive pension benefits. In fact, the appellant did not file with the VA any form even mentioning retroactive pension benefits until November 28, 1988, at which time he filed an NOD to the RO decision granting him disability pension benefits effective on the date his claim was received by the VA. Therefore, even if the appellant met the requirements of 38 U.S.C. § 5110(b)(3)(B), unless there is some reason to excuse the appellant’s failure to file a timely specific request for retroactive pension benefits, the BVA’s decision that the disability pension is effective only as of the date of the appellant’s claim is legally correct.

HI.

Both the appellant and the amicus argue, inter alia, that the VA’s failure to notify the appellant that he needed to make a specific request for retroactive benefits within one year of becoming permanently and totally disabled excuses his failure to make a timely request for retroactive pension benefits. They assert that this failure to notify the appellant individually is a violation of the provision contained in § 7722(d) that the VA is to provide to veterans, “to the maximum extent possible, aid and assistance ... in the preparation and presentation of [their] claims.” The Secretary of Veterans Affairs (Secretary), on the other hand, argues that § 7722(d) is merely a part of a general direction to the VA to develop large-scale veterans’ outreach programs and thus does not create any specific duties owed to individual veterans.

One of the basic tenets of statutory interpretation is that when a reviewing court “find[s] the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991). See also Ardestani v. I.N.S., — U.S. —, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (strong presumption that plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstance). We find that the terms of § 7722(d) are indeed unambiguous. The relevant part of this section provides:

The [VA] shall provide, to the maximum extent possible, aid and assistance (including personal interviews) to members of the Armed Forces, veterans and eligible dependents ... in the preparation and presentation of claims under the laws administered by the [VA].

Clearly, interviews and the preparation and presentation of claims before the VA must be done on an individual basis. Therefore, even though Congress’ general intention in passing the legislation of which § 7722(d) is a part may have been the creation of large-scale outreach programs, the plain language of this subsection manifests an ex*432plicit congressional intent to create at least one duty owed by the VA to veterans as individuals. (This duty is not unlimited in scope, however, and requires of the VA only those actions which are reasonable under the circumstances involved, see infra.) See United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986) (“[I]n the absence of a clearly expressed legislative intention to the contrary, the language of a statute itself must ordinarily be regarded as conclusive.”)

Moreover, this case does not present a “rare and exceptional circumstance” which would defeat the usual controlling nature of a statute’s plain language. “Rare and exceptional circumstances” exist “where the application of the statute as written will produce a result ‘demonstrably at odds with the intentions of its drafters.’ ” Manspeaker, 111 S.Ct. at 604 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1991)). Notably, “rare and exceptional circumstances” have been found by the Supreme Court not to exist in a case where the literal reading of the statute would provide for a potential $300,000 punitive award for the failure of an employer to pay a seaman $412.50 in wages, Griffin, 458 U.S. at 574, 577, 102 S.Ct. at 3253; nor in a case where the statute on its face required the permanent halting of a virtually completed dam, for which Congress had expended over $100 million, in order to ensure the survival of a “relatively small number of three-inch fish,” TVA v. Hill, 437 U.S. 153, 172, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978) (also notable is that the Supreme Court made this ruling despite Congress repeatedly enacting appropriations of new funds to the dam project after the discovery of the potential danger to the fish). Therefore, in light of these Supreme Court precedents, we cannot say that enforcing a duty, created by the literal language of § 7722(d) and owed by the VA to individual potential VA claimants to help prepare and present their claims “to the maximum extent possible,” is “so bizarre that Congress could not have intended it.” Manspeaker, 111 S.Ct. at 604.

In order to determine whether the VA violated this duty, the phrase “maximum extent possible” must be read in terms of that action reasonably possible under the circumstances. While it is unnecessary to determine the precise scope of this language in every case, we hold that in this particular case, the VA failed to take reasonable action to fulfill its duty under § 7722(d).

The VA itself has recognized that potential claimants should be advised of the specific application requirements, since, according to the Secretary, the VA revised its basic pension application form (VA Form 21-526) in September 1984 to “include instructions for filing a claim for retroactive payment of pension.” (Supp. Br. of Appellee, at 24-25.) The VA Form 21-527, which the appellant submitted to the VA on December 23, 1986, to commence his claim and which the VA accepted as an informal claim for pension, was also similarly revised in January 1987. (Appellee’s Resp. to Bench Order App., at 1.) Moreover, since this revision shows that the VA has recognized since January 1987 that claimants filing a VA Form 21-527 should receive information regarding the specific filing requirement, and the VA had been made aware of the appellant’s April 1986 hospitalization by his December 1986 application, it surely would have been reasonable for the VA to have timely informed the appellant of the one-year filing requirement. It is also likely, as evidenced by the appellant’s quick responses to the VA letters of April 1987 and July 1987, that if the VA had given the appellant this information, he would have responded promptly.

From these facts, we believe it is inescapable that the Secretary’s obligation to inform the appellant in a timely fashion of what he needed to know to make a retroactive application was part of the Secretary's obligation to provide “aid and assistance to him ... in the preparation and presentation of” his pension claim and was well within the “to the maximum extent possible” qualification of § 7722(d). Indeed, the Secretary has offered no argument that it was not reasonably possible for such assistance *433to have been provided to this veteran in a timely manner. Accordingly, the VA had a statutory obligation, within the remaining three-and-one-half months of the one-year retroactive benefits application period, to give this claimant the information he needed in order to decide whether he wished to claim retroactive benefits.

Despite this obligation, and even though there remained three-and-one-half months after filing of the VA Form 21-527 for the appellant to make a timely request for retroactive pension benefits, there is no evidence that the VA made any effort to inform him of the one-year specific request requirement. In fact, the first time the VA informed the appellant of such a requirement was in its September 20, 1987, RO decision, which was issued subsequent to the expiration of the one-year period, and which ruled that the appellant was not entitled to retroactive pension benefits. Finally, although it would have been too late to serve as a timely notification by the VA, it is also not insignificant that when the VA did send the appellant a VA Form 21-526 in July 1987 it did not, even then, send him the updated form, which had been revised almost three years earlier, with the special advice about applying for retroactive benefits.

As indicated, what the exact limits are of the duty owed to individuals under § 7722(d) need not be defined by the Court at this time. For present purposes, it suffices to say that a review of the record in this appeal shows that the VA violated the duty in this case.

IV.

Having determined that the VA has violated its duty toward the appellant, the Court must now determine the appropriate remedy. The Secretary argues that the recent Supreme Court decision in Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990), precludes payment of retroactive benefits in this case regardless of the violations of any rights of the appellant. The appellant responds that it is not Richmond that governs this appeal, but a subsequent Supreme Court decision, Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and that under the standard for equitable tolling expressed in that opinion, the appellant is entitled to the retroactive pension benefits that he seeks.

Richmond involved a case where a former federal employee receiving a retirement pension relied on erroneous information provided by the Office of Personnel Management, and took an action which caused him to exceed certain statutory income limits and thus become ineligible to receive certain pension benefits. He subsequently sued, asserting that because of its erroneous advice the government should be equitably estopped from not paying him pension benefits. The Supreme Court held that payments of money from the United States Treasury are limited to those authorized by statute, and that, therefore, regardless of the equities involved, the pensioner could not be paid the benefits he sought because he had not met the statutory eligibility requirements for those benefits and there was no other statutory authority under which to pay him. Richmond, 110 S.Ct. at 2471-72, 2475.

The Secretary argues that the same situation exists in this appeal — the appellant, relying on a lack of correct advice from the government, failed to take an action required by statute in order to establish eligibility for the benefits that he sought. The Secretary therefore asserts that since the appellant has not met the statutory requirements for retroactive pension benefits, no equities, no matter how compelling, can create a right to a payment out of the United States Treasury which has not been provided for by Congress. The Secretary’s argument, however, misses the crucial distinction between this case and Richmond. This case, unlike Richmond, does not involve a question of whether the government’s actions caused the appellant to fail to satisfy the underlying statutory eligibility requirements for the benefits sought, but rather whether the government’s actions resulted in the failure to file a timely request for these benefits. Therefore, the issue in this case is whether the govern-*434merit’s actions warrant an equitable tolling of the statutory time period for filing a claim against the United States Government and not whether the government is equitably estopped because of its misconduct from refusing to make payments which are not authorized by law. As a result, it is Irwin, and not Richmond, which controls this case.

Irwin involved the failure of a plaintiff to file suit against the United States within the time limit imposed by section 717(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1988), for a suit to obtain damages arising from an alleged civil rights violation. The district court and reviewing court of appeals had accepted the government’s argument that the statutory time requirement created an absolute bar against untimely suits, and thus ordered the suit dismissed. The Supreme Court, however, rejected the government’s argument and instead held that the time-period requirement was subject to the common law doctrine of equitable tolling. Irwin, 111 S.Ct. at 457. The Court reasoned that once Congress had made a waiver of sovereign immunity as it had done in the Civil Rights Act, the application of the equitable tolling rule to the government,

in the same way that it is applicable to private suits, amounts to little, if any, broadening of the Congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation.

Irwin, 111 S.Ct. at 457. The Court apparently saw no conflict with Richmond, decided only six months earlier, for it never cited Richmond even though both cases relied on settled principles of sovereign immunity.

The similarity between this case and Irwin is readily apparent, as both cases involve the failure to file claims against the United States Government within the applicable statutory time period. Moreover, the recent Federal Circuit Court of Appeals decision in Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992), is inapplicable to this case, since it dealt only with the Court’s jurisdiction over a case appealed to it. It is beyond doubt that the Court has jurisdiction over this appeal. We therefore hold that Irwin’s rationale controls this case, and that the doctrine of equitable tolling should be applied to the facts of the instant case.

V.

The Court must now apply the equitable tolling doctrine to the facts of this case. This Court has previously noted that the doctrine of equitable tolling is to be granted “only in extraordinary and carefully circumscribed instances.” Elsevier v. Derwinski, 1 Vet.App. 150, 154 (1991) (quoting Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)). We have also noted that one such extraordinary and carefully circumscribed instance is “where ‘despite all due diligence [the appellant] is unable to obtain vital information bearing on the existence of his claim.’ ” Elsevier, 1 Vet.App. at 154 (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990)). See generally Seattle Audubon Society v. Robertson, 931 F.2d 590, 596, 599 (9th Cir.1991) (applying Irwin, court of appeals held that statutory time limit for filing claim was equitably tolled on the grounds that “external forces, rather than plaintiff’s lack of diligence, accounted for failure to file timely claim”); Johnsen v. United States, 758 F.Supp. 834 (E.D.N.Y.1991) (applying Irwin, district court held that statutory time limit for filing claim for tax refund was equitably tolled due to the taxpayers’ mental incapacity).

We hold that equitable tolling applies in this case. The appellant filed his VA Form 21-527 on December 23, 1986, nearly four months before the expiration of the one-year time period in which to make a specific request for retroactive pension benefits. If the VA had abided by its duty under § 7722(d) and made the appellant aware of the specific request requirement for retroactive pension benefits — either by sending him the updated VA Form 21-527, or in a timely subsequent communication after the VA had received his “informal application” for pension benefits on the VA Form 21-*435527 — there is every reason to conclude from the appellant’s pattern of communication with the VA that he would have made the specific request well within the one-year time period. Thus, this case does not involve a “garden variety claim of excusable neglect,” Irwin, 111 S.Ct. at 458, because, in light of § 7722(d), the appellant did all he was required to do in order to obtain the relevant information regarding the benefits that he sought. Nor is the appellant’s failure to make a timely filing based merely on ignorance of the law, see School District of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir.1981) (“ignorance of the law is not enough to invoke equitable tolling”), as this “ignorance” is precisely what the VA’s duty under § 7722(d) is meant to address when it is triggered by circumstances such as those present here. Rather, we find that the appellant’s failure to make a specific request for retroactive pension benefits within one year of becoming permanently and totally disabled resulted from his inability, as a consequence of the VA’s violation of its duty owed to him under § 7722(d), “to obtain vital information” regarding his claim. Elsevier, 1 Vet. App. at 154. As such, we hold that the one-year filing requirement of § 5110(b)(3)(A) is equitably tolled.

VI.

Having found that the one-year filing requirement of subparagraph (A) of § 5110(b)(3) was equitably tolled, the remaining task for the Court is to determine whether the BVA’s finding of fact that, pursuant to subparagraph (B) of § 5110(b)(3), the appellant was not precluded from filing a claim for pension benefits for at least 30 days from the time he became permanently and totally disabled is clearly erroneous. Unfortunately for the appellant, however, this factual finding has a plausible basis in the record before the Court, and thus cannot be overturned as clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990) (factual findings of the BVA are clearly erroneous only when there is no plausible basis for them in the record). The evidence of record shows that the appellant was hospitalized for 28 days, during which time it is fair to assume that he was incapable of filing a claim with the VA. See 38 C.F.R. § 3.400(b)(l)(ii)(B) (1991) (“extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim”). However, despite the appellant’s still rather serious condition after his discharge from the hospital, a conclusion that he was able to file a claim with the VA during the two-day period after his discharge would not be “implausible” in light of the record on appeal. Therefore, since the BVA’s finding that the appellant was not precluded by his medical condition from filing a claim for a full 30-day period from the beginning of his illness has a plausible basis in the record on appeal, the Court cannot overturn that finding. More-, over, since this 30-day preclusion is a prerequisite for retroactive pension benefits, the Court also cannot overturn the BVA decision denying the appellant’s claim for them. Therefore, the decision of the BVA is AFFIRMED.

Smith v. Derwinski, 2 Vet. App. 448, decided 1992-06-18.

ORDER

The Court has reviewed the motion of the Secretary of Veterans Affairs (Secretary) for summary affirmance, appellant’s informal brief, and the record on appeal.

In regard to appellant’s claim for entitlement to service connection for hearing loss, the Court holds that because there is no evidence linking appellant’s present hearing loss to a disease or injury incurred in service, there is no basis on which to award service connection. See Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992).

In regard to appellant’s claim for entitlement to an increased disability rating for sacroiliac strain, currently rated at 40%, the Court affirms the decision of the Board of Veterans’ Appeals (BVA). Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (1991), the applicable DC, a rating in excess *449of 40% for sacroiliac strain is not authorized.

While the BVA acknowledges that appellant had degenerative disc disease (DDD), it did not address whether or not the DDD is entitled to either direct or secondary service connection. See 38 U.S.C. § 1110 (formerly 310); 38 C.F.R. §§ 3.304, 3.303, 3.310 (1991). The BVA is to address “all issues reasonably raised from a liberal reading of appellant’s substantive appeal.” Myers v. Derwinski, 1 Vet.App. 127, 129-30 (1991). Consequently, it is

ORDERED that that part of the BVA decision denying appellant’s claim for hearing loss is affirmed. It is further

ORDERED that that part of the BVA decision denying appellant an increased disability rating under DC 5295 is affirmed. It is further

ORDERED that the BVA decision is vacated in part and remanded for a determination of whether appellant’s DDD is entitled to service connection and, if so, to apply 38 C.F.R. §§ 4.71a, DC 5293, 4.3, 4.7, 4.20, 4.14 (1991). Should further medical evidence be necessary in making these determinations, the BVA is free to order another examination of appellant. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Upon remand, appellant is free to introduce additional evidence of his disability including the statements from Richard F. Kyle, M.D., dated May 1, 1991, and Rodger I. Ginsberg, D.C., dated June 4, 1991, that have been excluded from the record on appeal by Court order of December 12, 1991. In readjudicating appellant’s claim, the BVA is to provide adequate reasons or bases for its determination. Gilbert v. Derwinski, 1 Vet.App. 49, 56-59 (1990).

Smith v. Derwinski, 2 Vet. App. 449, decided 1992-06-29.

ORDER

On November 20, 1990, appellant filed a Notice of Appeal (NOA) from a Board of Veterans’ Appeals (Board or BVA) decision issued on August 31, 1990. On November 27,1990, appellant filed to stay proceedings pending disposition of a motion for reconsideration before the BVA. Appellant’s motion for reconsideration was filed with the BVA on December 8, 1990.

On January 13, 1992, the Secretary of Veterans Affairs (Secretary) informed the Court that as of January 10, 1992, a decision had not been made on appellant’s motion for reconsideration. The Secretary suggested that action on appellant’s motion might be completed by January 17, 1992. To date, there has been no indication from the Secretary or the BVA as to whether the BVA is inclined to granted appellant’s motion for reconsideration.

These proceedings have been stayed five separate times, at appellant’s request, pending action before the BVA on his motion for reconsideration of its August 31, 1990, decision. The Court considers 18 months to be sufficient time for the BVA, taxed as it is in manpower and resources, to determine whether or not it is inclined to grant reconsideration.

Upon consideration of the foregoing, it is

ORDERED that within 14 days after the date of this order, the Secretary shall advise the Court whether the BVA Chairman is inclined to grant appellant’s motion for reconsideration. If the Chairman is so inclined, the Secretary shall promptly file a motion for remand, clearly articulating the reasons for remand and the nature of the *450proceedings proposed by the Secretary. See Cerullo v. Derwinski, 1 Vet.App. 195, 200 (1991). It is further

ORDERED that these proceedings are stayed pending further order of the Court.

Smith v. Derwinski, 2 Vet. App. 461, decided 1992-05-21.

MEMORANDUM DECISION

KRAMER, Associate Judge: Appellant seeks a reversal of an August 17, 1990, decision of the Board of Veterans’ Appeals (BVA) denying her entitlement to an increased rating for residuals of a left pneumothorax with musculoskeletal chest wall pain, presently evaluated at 10% disabling. Because the BVA failed to consider and correctly apply relevant law and regulations, its decision is vacated and the case remanded for proceedings consistent with this decision.

I.

Factual Background

Appellant served on active duty from June 11, 1982, to May 5, 1987. R. at 1. In July 1986, appellant suffered a pneumotho-rax when her left lung was punctured by a doctor who was administering a nerve block to appellant. See Sarah J. Smith, BVA 90-28364, at 4 (Aug. 17, 1990); R. at 29, 37, 41, 174. (Pneumothorax is defined as “an accumulation of air or gas in the pleural space which may occur spontaneously or as a result of trauma or a pathological process, or be introduced deliberately.” Dorland’s Illustrated Medical Dictionary 1321 (27th ed. 1988).) In August 1986, appellant suffered a second pneumo-thorax when given another nerve block. R. at 37-41. The record' shows that, subsequent to these pneumothoraces, appellant has had chronic chest pain attributable to such pneumothorax. See, e.g., 18, 25, 33, 37, 38, 54, 58, 60, 61, 63-68, 70, 72,104,113, 116, 122, 128, 130, 155-57, 161-73, 174-89, 190-95, 199, 208, 217-19, 225, 228-31, 233-34. On August 22, 1989, appellant was awarded a 10% service-connected disability rating for residuals of left-lung pneumotho-rax with musculoskeletal chest wall pain. R. at 202.

As to the extent of the severity of the pain, a Department of Veterans Affairs (VA) staff physician, who had examined appellant on April 4, 1990, stated:

Ms. Sarah Smith has had chronic chest pain following a complex problem related to [pjneumothorax. She has contin[uous] pain which becomes severe with normal activities, because of her chronic pain she has been unable to keep a job, she has frequent absences from work because of her health. She is trained as a [d]ental [assistant and enjoys her work, but because of the above condition, [she] cannot find employment in this or any other field. In my opinion she is totally and permanently disabled from any type of work.

R. at 229. In addition, on July 20, 1990, Dr. Kevin J. Gill, another VA physician, who had diagnosed appellant as having “chronic chest pain due to complications of repeated pneumothoraces”, reported that “[appellant] has been unable to keep any full-time job due to her medical problems.” R. at 225. There is much other evidence in the record, including statements from her past employers, that this pain prevents her from engaging in substantially gainful employment. R. at 18, 27, 32, 128-30, 181-84, 197, 199, 200-01, 210, 218, 228-31, 233-34.

II.

Analysis

The rating schedule for pneumothorax provides that residuals of such a disorder are to be rated as “analogous to bronchial asthma diagnostic code 6602.” 38 C.F.R. § 4.97, Diagnostic Code (DC) 6814 (1991). DC 6602, in turn, provides:

100 percent

*463Pronounced; asthmatic attacks very frequently with severe dyspnea [(labored or difficult breathing) ] on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health.

60 percent

Severe; frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; more than light manual labor precluded.

30 percent

Moderate: asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dysp-nea on intervals between attacks.

10 percent

Mild; paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks.

38 C.F.R. § 4.97, DC 6602 (1991) (emphasis added). This DC measures the degree of impairment by the frequency and severity of the symptomatology. Thus, if, as the record appears to show, appellant always has incapacitating pain, she would be entitled to a rating in excess of 10% under DC 6602.

The BVA, in refusing to increase appellant’s 10% disability rating, stated, without analysis that “[i]n our judgment, ... the [appellant’s] symptoms are most compatible with a 10 percent evaluation. Accordingly, a higher rating is not warranted at this time.” Smith, at 4 (emphasis added). The BVA is to provide reasons or bases for making any material, factual, or legal determination, “especially for one that appears on its face to be inconsistent with ... the relevant evidence in the record.” Webster v. Derwinski, 1 Vet.App. 155, 159 (1991); see Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). On remand, the BVA is to carefully evaluate appellant’s rating within the context of all the relevant evidence contained in the record that documents the extent of appellant’s disability. See Cousino v. Derwinski, 1 Vet.App. 536, 540 (1991).

The Court also notes that the BVA has failed to address appellant’s claim for total disability based on unemployability and the evidence referenced above supporting it. R. at 216-19. See Myers v. Derwinski, 1 Vet.App. 127, 129-30 (1991). On remand, the BVA is to consider 38 C.F.R. §§ 4.16, 3.321(b) (1991). Summary disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 26 (1990). Therefore, the motion of the Secretary of Veterans Affairs for summary affirmance is denied and the decision of the BVA is vacated and remanded for proceedings consistent with this decision.

Smith v. Derwinski, 2 Vet. App. 587, decided 1992-07-14.

MEMORANDUM DECISION

STEINBERG, Associate Judge: The pro se appellant, veteran Charles A. Smith, appeals from a November 28, 1989, decision of the Board of Veterans’ Appeals (BVA or Board) denying service-connected disability compensation for an acquired psychiatric disorder and a left-eye disorder. The Board’s decision will be affirmed in part and vacated and remanded in part.

After the appellant had filed his brief, the Secretary of Veterans Affairs (Secretary) submitted a motion for remand to the BVA, asserting that the Board had failed to conduct the proper analysis for determining whether there was “new and material” evidence to reopen the claim. On February 21, 1992, the Court ordered the parties to show cause why the Court should not affirm the BVA decision on the grounds that there was no new and material evidence to reopen the appellant’s claims. In his response, the Secretary withdrew his motion for remand and submitted a motion for summary affirmance. The pro se appellant opposed summary af-firmance.

The veteran’s claim for service connection of an acquired psychiatric disorder was denied by a prior final Board decision in September 1977. R. at 40. His claim for service connection of a left-eye disability was denied by prior final Board decisions in September 1977 and December 1985. R. at 40, 73. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously disallowed claims, the BVA must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991).

In its November 28, 1989, decision, the BVA failed to conduct this two-step analysis with respect to the appellant’s psychiatric disorder and left-eye disability claims. Although the Board erred by failing to apply the proper standard upon reopening, its error was harmless because the claims should not have been reopened. The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Under Colvin, supra, evidence is new and material only if not cumulative and if it is “relevant and probative” and 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 outcome.”

The evidence submitted by the appellant in support of his claims to reopen consists of medical records from 1984 to 1988; excerpts from a medical text concerning the eye disorder from which the appellant suffers; and his May 18, 1988, personal hearing testimony before a Department of Veterans Affairs (VA) Regional Office. None of this evidence provides a basis for finding that the appellant’s current psychiatric and eye conditions were incurred in or aggravated by his service. Therefore, the evidence is not “material”, since, although “probative” of one of the elements of the claim (current disability), there is no reasonable possibility that the new evidence, when *589viewed in the context of all the evidence, would change the outcome of the prior BYA decisions. The veteran’s claims should not have been reopened, and any error attendant on the BVA’s denial of them in November 1989 was, therefore, harmless error. See 38 U.S.C. § 7261(b) (formerly § 4061); Kehoskie v. Derwinski, 2 Vet.App. 31, 34 (1991); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991).

The veteran, however, raised an additional claim to the Board, which the Board failed to address. At his May 18, 1988, hearing, the appellant submitted to the hearing officer a medical report dated October 4, 1968, stating in part: “Mr. Smith is 29, WSC, auth for 1st adm.”. R. at 106. The veteran asserted that “WSC” stands for “with service connection”, and demonstrates that he was previously awarded service-connected status for his conditions and should be granted compensation pursuant to that award. R. at 191, 87-88. The appellant again raised this argument in his informal brief in this Court. See Hesse v. Derwinski, 2 Vet.App. 359, 361 (1992) (remand required because Board failed to discuss whether veteran was entitled to benefits under a previous rating).

The BVA is required to review all issues which are reasonably raised from all documents and oral testimony of the claimant submitted prior to the BVA decision. See Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) (en banc); EF v. Derwinski, 1 Vet.App. 324, 326 (1991); Myers v. Derwinski, 1 Vet.App. 127, 130 (1991). Since the veteran here reasonably raised to the BVA a claim that he was previously awarded service-connected status for his conditions, the BVA, at a minimum, was required to respond to that claim. See EF, supra; Myers, supra. “The BVA may conclude that a claim was not well grounded, that the claimant did not meet the initial burden imposed by [§ 5107(a) (formerly § 3007)], and that there was no duty to provide assistance to the claimant”, but must provide an adequate statement of the reasons or bases for such conclusions. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); cf. Godwin, supra (BVA must respond to a claimant’s request for assistance one way or the other).

Upon consideration of the record, the Secretary’s motion for summary affirmance, the appellant’s informal brief, and various other pleadings filed by the parties, the Court holds as follows: (1) there is no new and material evidence to justify reopening of the veteran’s claim for service-connected disability compensation for an acquired psychiatric disorder or a left-eye disorder, and the November 28, 1989, BVA decision is affirmed as to those claims; and (2) the BVA erred in failing to respond to the appellant’s claim that he is entitled to compensation on the basis of an earlier award of service connection, and the record is remanded to the BVA for the purpose of determining whether that claim is well-grounded, and, if so, assisting the veteran in developing the facts pertinent to that claim and adjudicating the claim. The Court retains jurisdiction over that remanded claim. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Secretary shall file with the Clerk (as well as serve upon the appellant) a copy of any Board final decision on remand. Within 14 days after such filing, the appellant shall notify the Clerk whether he desires to seek further review by the Court.

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

Smith v. Derwinski, 3 Vet. App. 78, decided 1992-08-06.

MEMORANDUM DECISION

STEINBERG, Associate Judge: The pro se appellant, Lucy Smith, surviving spouse of veteran Sam Smith, appeals from an August 24, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying her entitlement to special monthly dependency and indemnity compensation (DIC) awarded to claimants who are in need of the regular aid and attendance of another person or do not satisfy the criteria to receive an aid-and-attendance allowance but are housebound. The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. For the reasons set forth below, the Secretary’s motion will be granted, and the Board’s decision will be affirmed.

Under 38 U.S.C. § 1311(c), (d) (formerly § 411), increased DIC is payable to a veteran’s surviving spouse who is in need of aid and attendance, or who does not satisfy the requirements to receive aid and attendance, but is housebound. See 38 C.F.R. § 3.351(a)(3), (4) (1991). In order for a surviving spouse to qualify for increased compensation based on a need for regular aid and attendance, the claimant must show that he or she is blind, as specified in 38 C.F.R. § 3.351(c)(1) (1991); a patient in a nursing home, as specified in 38 C.F.R. § 3.351(c)(2) (1991); or bedridden or unable to perform normal self-care functions, as specified in 38 C.F.R. § 3.352(a) (1991). “The ‘permanently housebound’ requirement is met when the surviving spouse is [not afflicted in one of the above three ways but is] substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse’s lifetime.” 38 C.F.R. § 3.351(e) (1991).

On January 29, 1980, the appellant received an award of DIC based on the service-connected cause of her veteran husband’s death. R. at 5. Several insurance claim forms, filled out by the appellant’s physician, Dr. Wayne G. Stanley, show that the appellant suffers from diabetes melli-tus, hypertension, and goiter (R. at 14-17, 27, 31) and had twice sought treatment for abdominal pain and a urinary tract infection (R. at 27, 31). A December 2, 1989, letter from Dr. Stanley stated: “Mrs. Smith is not homebound nor does she require any assistance, however she is not able to perform any gainful employment at this time, secondary to her hypertension.” R. at 21. In an undated letter to the Department of Veterans Affairs (VA) Regional Office, received by VA on February 5, 1990, the appellant stated that she experiences periods of time when she feels “sluggish”; she likened the episodes to “blackouts”, and claimed that they recur every six months to a year and leave her “house*80bound”. R. at 25. She did not indicate how long the episodes last.

In its August 24, 1990, decision, the BVA found that “while [the appellant] may have occasions when she would appreciate assistance or feel[s] that she is confined to her house or the immediate premises, it is not shown that her disabilities preclude the normal acts required for self-care or her ability to leave her home environment”. Lucy K. Smith, BVA 90-27250, at 3 (Aug. 24, 1990). The Board concluded that “the appellant does not require the regular aid and attendance of another person” and “does not meet the requirements for housebound benefits”. Smith, BVA 90-27250, at 4.

The Court reviews BVA factfinding under a “clearly erroneous” standard. Under 38 U.S.C. § 7261(a)(4) (formerly § 4061) and Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court must set aside a finding of material fact as clearly erroneous when the Court is left with a definite and firm conviction, after reviewing the entire evidence, that a mistake has been committed. The Court may reach that conclusion only if there is no “ ‘plausible basis in the record’ ” for the BVA findings at issue. Gilbert, 1 Vet.App. at 52-53 (quoting Anderson v. City of Bessemer, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)); see Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991). Thus, when the Board’s factual findings are supported by a “plausible basis” in the record, the Court may not overturn them as clearly erroneous.

The appellant submitted no medical or lay evidence, other than her own statements, to show that she meets the criteria set forth in the statute or regulation for entitlement to an increase in DIC by reason of need for aid and attendance or because she is housebound. In the only other evidence of record relating to confinement in the home or the need for aid and attendance, the appellant’s physician has explicitly indicated that she is not housebound or in need of aid and attendance. Therefore, the Court holds that there existed a plausible basis for the Board’s decision.

The Board did fail to address expressly the appellant’s contention that “sluggishness” or “blackouts” leave her occasionally housebound. However the appellant’s description of these episodes does not indicate that she is “substantially confined” to her home, as required by 38 C.F.R. § 3.351(e). Therefore, the Board’s discussion does not run afoul of the requirement in 38 U.S.C. § 7104(d)(1) (formerly § 4004) that the Board must provide an adequate statement of reasons or bases for its findings and conclusions “on all material issues of fact and law”. (Emphasis added.) See Gilbert, 1 Vet.App. at 59. Here the facts alleged regarding occasional blackouts and sluggishness are not “material” because, even if believed, they would not justify a finding that the appellant is housebound under the applicable VA regulation.

Upon consideration of the record, the Secretary’s motion, and the appellant’s informal brief, the Court holds that the appellant has not demonstrated that the BVA committed error in its findings of fact, conclusions of law, procedural processes, consideration of the benefit-of-the-doubt rule, or articulation of reasons or bases, that would warrant remand or reversal under 38 U.S.C. §§ 7252, 5107(b), 7104(d)(1), 7261 (formerly §§ 4052, 3007, 4004, 4061) and the analysis in Gilbert. The Court further holds that summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by our precedents and is not “reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Accordingly, the Secretary’s motion is granted, and the August 24, 1990, BVA decision is affirmed.

AFFIRMED.

Smith v. Derwinski, 3 Vet. App. 205, decided 1992-09-22.

HOLDAWAY, Associate Judge: Appellant, Albert Smith, appeals an October 19, 1990, decision of the Board of Veterans’ Appeals (BVA or Board), which determined that additional evidence received since a previous, final, decision of the BVA was not “new and material” and, therefore, did not establish “a new factual basis warranting service connection for valvular heart disease.”

BACKGROUND

Appellant was inducted into the Army on July 14, 1943. His induction physical showed no defects, and he reported for active duty on July 28, 1943. On August 26, 1943, he entered the hospital with headaches, precardial pain, and palpitations. The history taken by the examining physician indicated the condition had existed for five years, and that appellant became dizzy and felt pain around the heart whenever he exercised or felt overheated. The physician’s notation continues: “These conditions have been aggravated since induction. He feels that army life, with drilling and hiking is too strenuous for his condition.” The physician did not note whether the aggravation he referred to was caused, temporarily, by the drilling and hiking or was of a permanent nature. In any event, appellant was discharged on October 2, 1943, with a diagnosis of valvular heart disease and mitral stenosis (a condition in which the mitral valve is abnormally narrow, see Webster’s Medical Desk Dictionary 443 (1986)). The board of medical officers, recommending discharge, specifically found that the condition existed prior to induction into active service and was not aggravated by service.

In 1946, appellant applied to the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) for compensation on the basis that his heart condition was caused by service. His claim was denied because of his short period of service prior to hospitalization, and because his blood pressure was the same upon induction as upon discharge. Appellant did not appeal this determination but subsequently sought to reopen his claim on a number of occasions.

Eventually, appellant appealed one of the claims to the BVA. On January 7, 1986, the BVA rendered a decision which stated *207that because the June 1946 decision of the VARO was not appealed it was therefore final, and that the evidence received since that decision established no new and material facts sufficient to warrant reopening.

Appellant submitted more physician’s reports and clinical notes, and a letter dated January 31, 1986, from his physician, detailing the treatment appellant was receiving. In a rating decision of February 19, 1986, the VARO again denied appellant’s claim because the evidence was not new and material to establish service connection for a heart condition. Appellant again appealed to the BVA. A hearing was conducted on June 4, 1986. In a decision rendered on January 21, 1987, the BVA once again determined that there was “still no objective evidence that valvular heart disease had its onset or was aggravated while the veteran was in service.”

Since the 1987 BVA decision, appellant has submitted lay statements regarding his pre-service health; his own statements; testimony at a hearing before the Rating Board held on April 5, 1990; additional copies of service records, and medical records regarding his current condition. On October 19, 1990, the BVA once again determined appellant had not established a new factual basis to warrant service connection.

ANALYSIS

A BVA decision that is otherwise final may not be reopened and reconsidered unless new and material evidence has been submitted. 38 U.S.C. § 7104(b) (formerly § 4004(b)); 38 U.S.C. § 5108 (formerly § 3008). See Manio v. Derwinski, 1 Vet.App. 140 (1991); and Colvin v. Derwinski, 1 Vet.App. 171 (1991).

Upon an examination of the evidence of record, it is clear that there has been no new and material evidence submitted since the 1987 BVA decision. The medical records from August 1989 provide evidence of treatment of a current condition, but do not relate that condition to appellant’s World War II military service. The lay statements were, correctly, noted by the BVA to be cumulative in nature and are therefore not new. Duplicate copies of the service medical records previously in the file are, of course, not new. The BVA reviewed the “new” evidence in the context of all the evidence, old and new, and concluded that it was not new and material. This was a conclusion of law with which we entirely agree.

Because appellant has not submitted new and material evidence, there was no basis for reopening the claim. The decision of the BVA is AFFIRMED.