BVA9508395 DOCKET NO. 90-42 776 ) DATE ) ) On appeal from decisions of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for service-connected lumbosacral strain with degenerative disc disease at L5-S1, currently rated as 40 percent disabling. 2. Whether new and material evidence has been received to reopen the veteran's claim for entitlement to service connection for an acquired psychiatric disability and, if so, whether a review of the evidence, both old and new, warrants a grant of that benefit. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from August 1968 to May 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from decisions of the Huntington, West Virginia, Regional Office (RO). By rating decision dated in May 1989, the RO denied entitlement to an increased rating for service-connected low back disability. A notice of disagreement was received in December 1989. The veteran testified at a personal hearing at the RO in January 1990. A statement of the case was issued in July 1990, and the veteran's substantive appeal was received in August 1990. By rating decision dated in March 1993, the RO denied an attempt by the veteran to reopen a claim for entitlement to service connection for a "nervous condition." The veteran appeared at a personal hearing at the RO in May 1993, and the transcript of this hearing constitutes a notice of disagreement on the service connection issue. A supplemental statement of the case addressing both the increased rating issue and the service connection issue was furnished to the veteran and his representative in July 1993. A written communication received from the veteran in September 1993 has been accepted as his substantive appeal on the service connection issue. By rating decision dated in August 1993, the RO denied entitlement to service connection for residuals of a head injury and entitlement to a total disability rating based on individual unemployability due to service-connected disability. A notice of disagreement, dated in October 1993, was subsequently received. In July 1994, the RO furnished the veteran and his representative with a supplemental statement of the case which included discussion of these issues. However, a timely substantive appeal was not received, and the Board therefore does not have appellate jurisdiction of the issues of entitlement to service connection for residuals of a head injury and entitlement to a total disability rating based on individual unemployability due to service-connected disability. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). In a June 1994 rating decision, the RO, among other things, denied entitlement to a permanent and total rating for nonservice-connected disability pension purposes. Written argument from the veteran's representative dated in February 1995 includes language addressing this issue, and the Board therefore finds it to be a timely notice of disagreement on the nonservice- connected disability pension issue. Accordingly, this matter is hereby referred to the RO for appropriate action pursuant to 38 C.F.R. § 19.26 (1994). In its February 1995 written argument, the veteran's representative indicated that the veteran is claiming entitlement to service connection for right leg disability as secondary to his service-connected low back disability. This matter is also referred to the RO for appropriate development and adjudication. This case was previously before the Board and was remanded by decisions dated in March 1991, April 1992, and March 1994. The case is now again before the Board for appellate review. The veteran has been represented throughout the appellate process by the Veterans of Foreign Wars of the United States. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that the severity of the veteran's service-connected low back disability warrants a disability evaluation in excess of the current 40 percent. The veteran asserts in sworn testimony that he suffers constant back pain and must wear a back brace at all times. He further maintains that he suffers weakness and pain in the lower extremities as a result. The Board's attention is directed to the medical records which document the veteran's severe back disability. The veteran and his representative also contend that entitlement to service connection for an acquired psychiatric disability is warranted. The veteran maintains that he was nervous during his military service in Korea since there was always the potential of violence in the DMZ. The veteran also asserts that the stress of his low back disability impacts on his nerves. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports entitlement to an increased evaluation for service-connected lumbosacral strain with degenerative disc disease at L5-S1, to 60 percent disabling. It is the further decision of the Board that new and material evidence has not been received to reopen the veteran's claim for entitlement to service connection for an acquired psychiatric disability. FINDINGS OF FACT 1. The veteran's service-connected low back disability is productive of complaints of pain, clinically demonstrated tenderness, muscle spasm and limitation of range of motion, with radiological evidence of advanced degenerative disc disease of the lumbosacral spine. 2. Entitlement to service connection for a "nervous condition" was denied by rating decision in August 1982, and the veteran did not perfect an appeal from that determination. 3. Evidence received since the August 1982 rating decision does not raise a reasonable possibility that a review of the entire record would result in a different outcome on the veteran's claim for entitlement to service connection for a chronic acquired psychiatric disability. CONCLUSIONS OF LAW 1. An evaluation of 60 percent is warranted for the veteran's service-connected lumbosacral strain with degenerative disc disease at L5-S1. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321 and Part 4, including 4.7, 4.40, 4.45 and Code 5293 (1994). 2. The August 1982 rating decision denying entitlement to service connection for a "nervous condition" is final. 38 U.S.C.A. § 7105(c) (West 1991). 3. Evidence received since the August 1982 rating decision is not new and material, and the veteran's claim for entitlement to service connection for a chronic acquired psychiatric disability has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for Low Back Disability. The first issue involves the veteran's appeal from the RO's May 1989 rating decision denying entitlement to an increased rating for low back disability, currently described for rating purposes as chronic lumbosacral strain with associated degenerative disc disease at L5 and S1. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Service medical records reveal that the veteran suffered an injury to the back in March 1970 after falling approximately 10 feet. Marked muscle spasm was noted with tenderness above the right iliac crest with some swelling. He was admitted to a military medical facility with a diagnosis of lumbosacral strain. He was released back to duty after 18 days of hospitalization with no muscle spasm or tenderness, and full range of motion in all directions with virtually no pain. Department of Veterans Affairs (VA) examination in August 1972 resulted in a diagnosis of lumbar strain, and service connection was established for low back disability and a 10 percent evaluation assigned by rating decision dated in October 1972. VA medical records document continued treatment, including hospitalizations, associated with his low back disability through the 1970's into the early 1980's. On VA examination in May 1982, the veteran wore a back corset and walked with great difficulty. Tenderness down the entire lumbosacral spine was noted, and the movement of the spine was reportedly severely limited in all directions. After reviewing comparative radiological studies, the reported impression was chronic lumbosacral degenerative disease with progression. By rating decision dated in August 1982, a 40 percent rating was assigned for the veteran's low back disability. VA medical records dated in the 1980's document continued outpatient treatment and several hospitalizations related to his low back disability. On VA examination in May 1990, it was reported that the veteran wore a large back brace with straps. Ambulation was slow and cautious with continuous use of a cane for support. Forward flexion was to 30 degrees with pain and instability. The pertinent examination diagnosis was chronic low back pain syndrome, 20 percent degenerative changes, lumbosacral spine. The veteran continued to receive outpatient treatment for back complaints in 1991 and 1992. In November 1992, the veteran underwent another VA examination. He complained of constant low back pain with radiation into the hip and right lower extremity. The veteran's posture was reported to be stooped and his gait broad based. Flexion was to 50 degrees, extension was to 10 degrees, side bending was to 30 degrees bilaterally and rotation was to approximately 40 degrees bilaterally. Tenderness was noted over the spinous processes with marked spasm in the lumbosacral region bilaterally. X-rays were interpreted as showing disc herniation at the L5-S1 level with some bulging of the L4-L5 region and extensive disc degenerative process at the L5-S1 level. An EMG study conducted in December 1992 suggested a mechanical low back pain syndrome with no evidence of nerve root disease. Outpatient reports show continued treatment for low back complaints in 1992 and 1993. On VA medical examination in April 1994, the veteran complained of constant lower back pain associated with right leg pain and occasional sharp pains in the right buttock. The veteran was reported to be limping with an unsteady gait and a tendency to bend forward. Forward flexion was to 50 degrees and quite painful, and backward extension was to 35 degrees with some pain. Both left lateral flexion and right lateral flexion were to 30 degrees with no pain, and rotation was to 25 degrees bilaterally with some discomfort. Ankle jerks were reported to be 2+ and equal. Straight leg raising on the right produces back pain and Lasegue's sign was positive on the right. Radiological study showed advanced degenerative disc disease localized to the lumbosacral junction with disc herniation ruled out at this level, mild degenerative changes in the rest of the lumbosacral spine and muscle spasms. The examination diagnosis was chronic lumbosacral strain with associated degenerative disc disease of L5-S1. The veteran's low back disability is currently rated as 40 percent disabling under the provisions of Diagnostic Code 5295 for lumbosacral strain. This 40 percent evaluation is the highest schedular rating available under this Code. A 40 percent rating is also the highest rating possible under Codes 5003 and 5292 which deal with degenerative arthritis and loss or range of motion. However, a 60 percent rating is available under Diagnostic Code 5293 for pronounced intervertebral disc syndrome when there are persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. Applicable regulatory guidelines also provide for consideration to be given to function loss due to pain and interference with movement. 38 C.F.R. §§ 4.40, 4.45 (1994). It is readily clear from a review of the record that the veteran has been plagued with severe symptomatology associated with his low back disability for well over 20 years. He has not only received regular outpatient treatment for low back complaints, but he has been hospitalized on various occasions. The most recent VA clinical examinations document low back tenderness and muscle spasm. The veteran's posture and gait reflect his low back symptomatology, and he has worn a low back brace for a number of years and uses a cane. Significantly, x-ray studies show advanced degenerative disc disease. While it does not appear that ankle jerk was absent at the time of the 1994 examination, after reviewing the most recent examination findings in light of the long history of documented low back complaints, the Board finds that the veteran's low back disability picture more nearly approximates the criteria for a 60 percent rating under Diagnostic Code 5293. In making this determination, the Board has recognized the veteran's functional loss due to pain. 38 C.F.R. § 4.40 (1994). Accordingly, the higher rating of 60 percent is warranted. 38 C.F.R. § 4.7 (1994). The Board believes that such a schedular rating of 60 percent under Code 5293 adequately contemplates the impairment resulting from the veteran's low back strain. While the veteran does have a long history of low back problems, however, the evidence does not show such an exceptional or unusual disability picture due to this disability so as to warrant an extraschedular rating under 38 C.F.R. § 3.321(b) (1994). The Board recognizes that the veteran has apparently been unemployed for some time, but the evidence is not persuasive that the industrial impairment resulting from his service-connected low back disability renders impractical the application of the regular schedular standards. Moreover, while there have been several hospitalizations related to his low back disability, the Board is unable to find these hospitalizations to be so frequent so as to warrant an extraschedular rating. II. Service Connection for an Acquired Psychiatric Disability. Entitlement to service connection for a "nervous condition" was denied by rating decision in August 1982, and the veteran did not perfect an appeal. Accordingly, that decision became final. 38 U.S.C.A. § 7105(c) (West 1991). However, applicable law provides that a claim may nevertheless be reopened and the previous disposition reviewed if new and material evidence is presented. 38 U.S.C.A. § 5108 (West 1991). In determining whether such new and material evidence has been presented, the Court has indicated that a two-step analysis is required. Manio v. Derwinski, 1 Vet.App. 140 (1991). The first step is to determine whether new and material evidence has been received to reopen a claim. If so, the second step, involving a de novo review of all of the evidence, both old and new, is undertaken to determine if there is a basis for granting the claim. For purposes of this analysis, new and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). Moreover, to be "material evidence" the evidence must not only be relevant to and probative of the issue at hand, but also present "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). It should also be emphasized that the Court has indicated that when determining whether or not new and material evidence has been presented, consideration must be given to all evidence received since the last denial on the merits, not the last decision finding no new and material evidence. Glynn v. Brown, 6 Vet.App. 523 (1994). Therefore, although a July 1990 rating decision found no new and material evidence to reopen this claim, the last decision on the merits with regard to this issue was the August 1982 rating decision. Accordingly, for purposes of determining whether new and material evidence has been presented to reopen the chronic acquired psychiatric disability claim, the Board's focus will be on the evidence received since 1982. At this juncture the Board observes that under applicable law, service connection will be granted if the facts show that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Additionally, service connection may be established for disability which is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310 (1994). Evidence before the RO at the time of the 1982 rating decision included service medical records and VA medical reports dated from 1972 to 1982. The service medical records showed no psychiatric complaints or findings, and the report of VA examination in August 1972 included a notation that there were no psychiatric findings. Likewise, VA medial records dated from 1972 to 1982 do not document any psychiatric symptomatology. Based on this evidence, the RO denied entitlement to service connection for a "nervous condition" by rating decision in August 1992. Evidence received since August 1982 includes numerous VA outpatient, hospital and examination reports related to the veteran's service-connected low back disability. However, there is no medical evidence of any psychiatric symptomatology prior to 1989. It appears that the veteran began receiving treatment at that time for what was described as a generalized anxiety disorder. It is readily clear that this medical evidence documenting psychiatric treatment is "new" in the sense that it was not of record in 1982. However, under the circumstances of this case, the Board does not find this evidence to be new and material evidence so as to provide a basis for reopening the veteran's claim. Although a psychiatric disability may currently be present, the record is still devoid of any evidence to link a current psychiatric disability to the veteran's service or to any service-connected disability. As noted earlier, the presence of a chronic psychiatric disability has not been shown during service or for many years after discharge. Therefore, there is no basis for establishing service connection on a direct basis. Moreover, there is no credible evidence tending to link any current chronic psychiatric disability to a service-connected disability. Although the veteran has testified at VA hearings as to such a perceived relationship, such a determination requires diagnostic skills and must be made by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In this regard, the Board observes that the examiner who conducted the April 1994 VA examination stated his trained opinion that there was no relationship between the veteran's low back disability and his anxiety related problems. In sum, after considering the evidence received since August 1982, the Board is unable to find that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Accordingly, the veteran's claim for entitlement to service connection for chronic psychiatric disability has not been reopened. ORDER The appeal as to the claim for an increased rating for lumbosacral strain is granted; the appeal as to the request to reopen the claim for service connection for a psychiatric disability is denied. G.H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.