BVA9501755 DOCKET NO. 93-06 287 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder. 2. Entitlement to an increased (compensable) evaluation for myositis of the lumbar region. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from July 1945 to August 1946. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the appellant and his representative contend that service connection is warranted for a chronic acquired psychiatric disorder. The veteran argues that his nervous condition began during service and was manifested by severe anxiety, as is reflected in his service medical records. He points out that he was treated for a "nervous breakdown" in May 1947, nine months after discharge from service. He asserts that this indicates that his psychiatric disorder had its onset within the presumptive period after separation from service, or that any preexisting psychiatric disorder was aggravated in service. It is also asserted that a compensable rating is warranted for his service-connected myositis of the lumbar region. He reports soreness, tightness and muscle spasms. 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 appellant has not met the burden of submitting new and material evidence which would result in the reopening of the claim for service connection for a chronic acquired psychiatric disorder. Additionally, it is the decision of the Board that the preponderance of the evidence supports a 10 percent rating for myositis of the lumbar region. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The RO denied service connection for a psychiatric disorder by rating decision in August 1947, confirmed in December 1947, and in December 1950; the veteran was duly notified of the 1947 and 1950 denials but did not timely appeal. 3. Evidence submitted since the most recent denial on the merits in 1950 is not new and material as to the issue of entitlement to service connection for a psychiatric disability. 4. Current manifestations of the veteran's low back include complaints of tightness, soreness and pain, with findings principally of slight tenderness, stiffness and, overall, slight limitation of motion of the lumbar spine. CONCLUSIONS OF LAW 1. Evidence received in support of the claim for service connection for a psychiatric disability is not new and material, and the claim has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1993). 2. The criteria for a 10 percent evaluation for myositis of the lumbar region have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.7 and Part 4, Diagnostic Codes 5021, 5003, 5292 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented claims which are plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the veteran's claim. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Entitlement to Service Connection for a Chronic Acquired Psychiatric Disorder As indicated earlier, service connection for a psychiatric disorder was previously denied by the RO by final rating determination in December 1947 and December 1950. Claims that have been the subject of a prior denial may be reopened only upon the submittal of additional evidence, which, under the applicable statutory and regulatory provision, is both new and material. "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative and, when considered in light of all the evidence, both old and new, presents a reasonable possibility of an allowance. Evidence is presumed credible for the limited purpose of deciding whether a claim is reopened. Justus v. Principi, 3 Vet. App. 510 (1992). A determination as to whether evidence is new and material requires review of all the evidence submitted since the last final denial of the merits of a claim. Glynn v, Brown, 6 Vet. App. 523 (1994). In this case, the 1950 rating decision was the last final rating decision on the merits. Evidence of record at the time of the 1950 RO decision which denied service connection for a chronic acquired psychiatric disorder consisted of service medical records and post service private and VA records, to include a VA special neuropsychiatric examination report from December 1950. The service records show that in January 1946, it was noted that the veteran complained of dizziness and weakness while at work in the barbershop. He reported that these complaints had been present for six years. The examiner opined that these complaints could be accounted for on an anxiety basis as the veteran was quite nervous. Subsequent records state that he had schizoid personality with disproportionate complaints. When he was discharged from service in August 1946, psychiatric complaints or diagnoses were not indicated. A post service examination by an orthopedist, authorized by VA, in June 1947, reported a severe, fixed psychoneurosis bordering on true psychosis. It was noted that the veteran had suffered a severe cerebral concussion with fracture and a prolonged period of unconsciousness when he was five years old. Members of his family stated that since that time, he had been "apprehensive and mildly unstable mentally with a minimal mental and physical reserve." Most of the pathology had existed prior to service and was considerably aggravated by service. Private physicians' statements from September 1947 indicate treatment of the veteran for neurasthenia and anxiety. One physician reported that he had seen the veteran since April of that year. In January 1949, the veteran was admitted to a VA facility for various complaints to include nervousness. He had had a moderate neurotic personality since childhood. The final diagnoses included passive dependency reaction. Statements made by private physicians dated in 1949 and 1950 indicate that they treated the veteran for psychoneurosis and conversion reaction. The veteran was examined in November 1949 at a VA mental hygiene clinic. A lifelong personality pattern (schizoid personality) was noted, and the examiner summarized that the veteran was functioning at an obsessive-compulsive level. A special neuropsychiatric examination conducted by a board of two VA examiners in December 1950 resulted in diagnoses of passive dependency reaction and superimposed conversion reaction. It was noted that the veteran's medical history included a "nervous breakdown" in May 1947. The RO denied the veteran's claim in December 1950 stating that if the veteran had a psychoneurosis superimposed in service on his basic personality defects, there was no evidence of a continuity of psychoneurosis following service, and "it must be considered as a temporary situational occurrence such as [was] apt to develop in any individual with personality defects." Evidence received since the 1950 determination consists of medical records from private and VA sources, lay statements and the transcript of a personal hearing from December 1992. Gerardo Lafont, M.D., reported in September 1984 that he had treated the veteran since July 1982. His diagnosis was generalized anxiety disorder. He stated that the veteran had been suffering from anxiety neurosis since the age of 19, when he claimed to have had his first "nervous breakdown." A private examination dated in May 1986 includes the diagnoses of anxiety neurosis and a "personality disorder, unknown type." H. Fred Koenig, Ph.D., reported in April 1991, that he had treated the veteran for generalized anxiety disorder since October 1987. He also noted that the veteran gave a history of a "nervous breakdown" in May 1947. The veteran reported that he was unable to function at work for two years after his breakdown and had spent his time at home during this period. He was treated with medication for years and was hypersensitive to noise, exhibited poor concentration, insomnia, anxiety, confusion, indecisiveness and poor memory. He taught school for approximately 30 years with the help of medication until 1984- 1985 when he started having anxiety attacks again with all of the symptoms listed above. He could no longer teach because of harassment (insults) on the job and an increased intolerance to noise. The physician noted that the veteran's medication and his once a month psychotherapy and weekly stress management helped him cope with these symptoms. Dr. Lafont reported in May 1992 that he had seen the veteran for psychiatric treatment only "every six months or so, because his emotional status [had] not changed at all." He added that the veteran's emotional condition had probably "been there" since he was a young boy. His diagnoses were somatization disorder and generalized anxiety disorder. At a personal hearing in December 1992, the veteran testified that his "nervous breakdown" in 1947 was related to the fact that he and his twin brother, a fellow serviceman, were separated during active duty on three occasions. This caused him much distress. He reported that he had taken medication on an ongoing basis since 1947. He said that Dr. Lafont believed that he was "genetically programmed" to have generalized anxiety and the somatization and compulsive disorder. Four statements dated in November 1992 were added to the record. One was provided by the veteran's brother, and the other three were provided by people who knew the veteran at the time of his "nervous breakdown" in May 1947. They recalled that the veteran had been unable to cope with stress or noise at that time. This additional evidence is not new and material. In this regard, "new and material evidence" is defined by regulation as 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 a claim. 38 C.F.R. § 3.156(a) (1993). The medical evidence submitted subsequent to the December 1950 RO decision is not new because it is cumulative to evidence previously of record. The evidence previously of record had shown that the veteran had displayed psychiatric symptoms during service, but it was not until approximately one year after service that an acquired chronic psychiatric disorder was shown superimposed upon long-standing personality disorder. The evidence which has been added to the record since 1950 similarly does not show that a chronic acquired psychiatric disorder was present in service or was related to service. The additional medical evidence simply shows the long-standing personality disorder and post-service superimposed psychoneurosis, variously diagnosed. It does not include competent evidence that a psychoneurosis was present in, or is related to service. In this regard, the history set forth by Dr. Lafont of anxiety neurosis since age 19, when the veteran "claimed to have had his first nervous breakdown", has been considered. Since the veteran's date of birth is January 1927, this history might arguably place the psychoneurosis in service. However, the qualifying phrase regarding the first nervous breakdown suggests strongly that the veteran was referring to the "breakdown" which he has consistently stated occurred after service, in 1947. In addition, Dr. Lafont did not see the veteran until long after service, and the RO had previously rejected a finding that psychoneurosis had its onset in service. Again, the contemporary medical evidence does not show psychoneurosis until after service. The veteran believes, as is shown in his recent testimony, that his "breakdown" in 1947 was caused by the stresses of his military service, but neither he nor the individuals who submitted statements on his behalf, as lay persons, are considered competent with respect to what is essentially a question of medical etiology or causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). To summarize, the additional evidence, to include medical records, statements and testimony, is consistent with evidence previously of record. It simply does not change the fact that a personality disorder was found during service, and that a chronic acquired psychiatric disorder (neurosis) was not present in service or shown by competent evidence to be related to service. There is no provision for presumptive service connection for a psychoneurosis. Entitlement to an Increased Evaluation for Myositis of the Lumbar Region Initially, we note that while the veteran has claimed that the 1991 VA orthopedic examination was not thorough, (see hearing transcript, page 9), our review of the examination report shows a detailed recitation of the veteran's medical history, a list of his subjective complaints and a detailed report of examination findings, to include range of motion testing results and interpretation of X-rays of the lumbar spine. Inadequacy of this rating examination for rating purposes is not indicated. In addition, we note that the record contains an even more recent examination report (a private examiner's orthopedic examination report dated in July 1992) which was also considered in rating the veteran' back disorder. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1993). An evaluation of the level of disability present also includes consideration of the functional impairment as it affects the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1993). It is contended that a compensable evaluation is warranted for the veteran's low back disorder. A brief history of the events preceding this appeal are as follows: Service connection for myositis of the lumbar region was established by rating determination in August 1946. A 20 percent evaluation was assigned, effective from August 19, 1946. This rating was confirmed and continued upon rating decisions in August 1947, February and March 1948 and February 1949. In September 1950, and following a VA examination which stated that chronic myositis of the back was not found, this rating was reduced to a noncompensable evaluation which is still in effect. Subsequent medical records refer to flare-up of back pain. This appeal ensued following a September 1991 rating determination which confirmed and continued the noncompensable rating. Under the applicable diagnostic criteria used by VA for assessing the severity of service-connected disorders set forth in the Schedule for Rating Disabilities (Schedule) (38 C.F.R. Part 4), the veteran's myositis of the lumbar region is, or may be rated by analogy to, several diagnostic codes. For example, Diagnostic Code 5021 provides that this disorder is rated as degenerative arthritis on the basis of limitation of motion of the affected part. Diagnostic Code 5003 provides that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Diagnostic Code 5292 provides for a 10 percent evaluation for slight limitation of motion of the lumbar segment, and a 20 percent evaluation for moderate limitation of motion. Under Diagnostic Code 5295, lumbosacral strain with slight subjective symptoms only is noncompensable; with characteristic pain on motion it is 10 percent disabling; and with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion it is 20 percent disabling. Clinical evidence regarding the veteran's service-connected myositis of the lumbar region is provided by VA examination in August 1991 and a private examiner's report from July 1992. In 1991, it was noted that the veteran reported episodes of pain, aching soreness, tenderness and stiffness. Physical examination showed that he walked without difficulty. Examination of the spine showed slight tenderness and soreness over the lumbar spine and some stiffness. There was no increased kyphosis or scoliosis. He could raise on his toes and heels and squat without difficulty. He could forward flex to 65 degrees, extend to neutral and bend and rotate 20 degrees in either direction. There was no sciatic irritation and straight leg raising was negative. An X-ray was interpreted as showing early minimal arthritis spurring, and the diagnosis was chronic lumbosacral strain. More recent findings from the 1992 report show that the veteran continued to complain of intermittent back pain dating back to his inservice back injury. Upon examination, his spine was straight without deformity, and he exhibited normal range of motion. At his hearing, the veteran testified that he had chronic back pain all the time with exacerbations; that after physical activity, the muscles got sore; and that he had recently experienced muscle spasms. The current clinical reports indicate some improvement in the veteran's range of motion of the lumbar spine between examinations in 1991 and 1992. While slight limitation of motion was indicated on forward flexion at the earlier examination, his range of motion was normal at the private examination in 1992. As myositis is rated on limitation of motion, the degree of limitation of motion is significant. In addition, the examination reports, the veteran's statements and his testimony reflect history of complaints including pain, soreness and spasm. Corroboration of this history is found on examination in 1991 at which time, some tenderness, soreness and stiffness were documented. On the basis of this evidence, we find that, overall, the myositis of the lumbar spine more nearly results in disability causing slight limitation of motion of the lumbar spine. However, we do not find that the myositis more nearly results in moderate limitation of motion of the lumbar spine or muscle spasm on extreme forward bending with unilateral loss of lateral spine motion. In so concluding, we are mindful of the veteran's testimony and statements reporting occasional exacerbations of back symptomatology. As is set forth at 38 C.F.R. § 4.1, concerning the essentials of evaluative ratings, generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations. We are also mindful that service connection is not in effect for all back residuals. In this regard, service connection is not in effect for arthritis of the lumbar spine, although, all signs and symptoms have been considered at this time. The evidence above does not suggest that the veteran's service- connected low back disorder presents such an exceptional or unusual disability picture so as to render impractical the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1), as he has not been frequently hospitalized for treatment of his condition in recent years, and the schedular criteria are adequate to rate this disability. ORDER New and material evidence has not been submitted to reopen the claim of entitlement to service connection for a chronic acquired psychiatric disorder. A 10 percent evaluation for myositis of the lumbar spine is granted, subject to the criteria governing the award of monetary benefits. NANCY I. PHILLIPS 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.