Citation Nr: 0001337 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-08 812A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to an increased (compensable) rating for hysterical neurosis, conversion type. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from June 1973 to November 1973 and from November 1975 to February 1980. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). In the December 1999 Written Brief Presentation, the veteran's representative raised the issue of service connection for "leg problems". As this issue has not been adjudicated by the RO, it is referred there for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In August 1988, the RO denied service connection for a back condition, to include degenerative disc disease of L5- S1, on the basis that the evidence did not show that the disability was related to active service; after being notified of the decision and his appellate and procedural rights, the veteran did not file an appeal. 3. Evidence added to the record since the August 1988 rating decision is cumulative and redundant, does not bear directly and substantially upon the issue at hand, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 4. The veteran has failed to submit evidence to justify a belief by a fair and impartial individual that a claim for service connection for a cervical spine disability is plausible. 5. The veteran has failed to submit evidence to justify a belief by a fair and impartial individual that a claim for service connection for a left shoulder disability is plausible. 6. The veteran's service-connected hysterical neurosis, conversion type, is not productive of mild social and industrial impairment and does not require continuous medication. CONCLUSIONS OF LAW 1. The August 1998 rating decision, which denied service connection for a back condition, to include degenerative disc disease of L5-S1, is final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105 (1999). 2. Evidence received since the August 1988 rating decision is not new and material and the claim for service connection for a low back disability is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran has not submitted a well-grounded claim for service connection for a cervical spine disability. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran has not submitted a well-grounded claim for service connection for a left shoulder disability. 38 U.S.C.A. § 5107(a) (West 1991). 5. The criteria for a compensable rating for hysterical neurosis, conversion type, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9402 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9424 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Factual Background The evidence of record at the time of the August 1988 rating decision will be briefly summarized as follows: The service medical records show that the veteran injured his back in 1976 in Fort Ord when he pulled a muscle while lifting weights, but the pain was gone in a week. He continued lifting weights and began having back problems again in March 1979. The pain subsided but recurred again in August 1979. Later that month, X-rays revealed scoliosis of the lumbar spine. On VA examination in July 1998, it was noted that the veteran sustained a work-related back injury in 1986 while doing heavy labor for which he received Worker's Compensation. X- rays of the lumbar spine revealed degenerative appearance at the level of L4-5 and intervertebral disc space narrowed at L5-S1. The diagnosis was mild degenerative disc disease of the spine. In an August 1988 rating decision, the RO denied service connection for a back condition, to include degenerative disc disease of L5-S1. That month, the RO notified the veteran of the adverse decision and his appellate and procedural rights, but he did not file an appeal. In July 1996, the veteran sought to reopen the claim for service connection for a low back disability. Analysis At the outset, the Board notes that in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit held that the United States Court of Appeals for Veterans Claims (formally known as the United States Court of Veterans Appeal (hereinafter "the Court")) erred in adopting the "material evidence" test articulated in Colvin v. Derwinski, 1 Vet. App. 171 (1991). Hodge, 155 F.3d at 1363-64. In light the holding in Hodge, the Board is now required to analyze newly submitted evidence according to the standard outlined in 38 C.F.R. § 3.156(a). Further, the Court held, in Fossie v. West, 12 Vet.App. 1 (1998), that the standard articulated in 38 C.F.R. § 3.156(a) is less stringent that one previously employed by Colvin. Therefore, the Board determines that no prejudice will result to the appellant by the Board's consideration of this matter. As previously noted, the RO denied the veteran's claim seeking entitlement to service connection for a low back disability in an August 1988 rating decision. That decision was predicated on a finding that such disability, to include degenerative disc disease of L5-S1, was not shown to be related to service. The veteran was provided notice of this adverse decision and of his appellate rights, but an appeal was not initiated. 38 U.S.C.A. § 7105(a), (b)(1); 38 C.F.R. §§ 20.200, 20.302(a). Therefore, the August 1988 rating decision became final when the appellant did not file a notice of disagreement (NOD) within one year of the date of mailing of the notice of that unfavorable determination. 38 U.S.C.A. § 7105(c). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopen and allowed. The exception to this rule is 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d at 1383. "New and material evidence" means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a three-step analysis. Winters v. West, 12 Vet.App. 203 (1999) (explaining the holding in Elkins v. West, 12 Vet.App. 209 (1999)). First, the Board must determine whether the appellant has submitted new and material evidence under 38 C.F.R. § 3.156(a). If the Board determines that the submitted evidence is not new and material, then the claim cannot be reopened. Second, if new and material evidence has been presented, then immediately upon reopening the claim the Board must determine whether, based on all the evidence of record in support of the claim, presuming the credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters and Elkins, both supra; see also Manio v. Derwinski, 1 Vet. App. 140, 145-46 (1991). The evidence added to the record since the August 1988 rating decision consists of the following: (1)service medical records; (2) VA medical records from 1991 to 1998; (3) report of VA psychiatric examination in September 1996; and (4) personal hearing testimony. The evidence contained in item (1) was of record at the time of the August 1988 rating decision, and constitutes duplicate evidence. The evidence contained in item (2) and (3) can be considered "new" in that it was not of record at the time of the August 1988 rating decision. However, the additional records are not "material" because they do not establish the required etiological link between the veteran's inservice low back complaints and his post-service low back problems. In this regard, the Board notes that the September 1996 VA psychiatric examination does not contain any findings regarding the low back. Though the additional VA medical records reveal a current low back disability, they do not relate such disability to service. Item (4) contains the veteran's sworn testimony during a June 1998 hearing. Insofar as the veteran's assertions that his current low back disability is related to low back problems treated in service, his own lay opinion would be insufficient evidence to support the claim. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (holding that lay persons are not competent to offer medical opinions). Because the evidence submitted since the August 1988 rating decision, when viewed either alone or in conjunction with the other evidence of record, does not show that the veteran's current low back disability is related to service, it is merely cumulative and redundant, and has no significant effect upon the facts previously considered. As such, it is not new and material as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the claim of service connection for a low back disability. 38 U.S.C.A. § 5108. As the claim is not reopened, the Board does not reach the merits of the claim, including the application of the benefit of the doubt standard. See 38 U.S.C.A. § 5107. II. Service Connection Factual Background The service medical records are negative for complaint, finding or diagnosis regarding the cervical spine or left shoulder. VA examination in July 1998 is void of complaints or findings regarding the cervical spine or left shoulder. VA medical records show that in January 1991 the veteran reported having chronic neck pain from an injury at age 31 (or approximately in 1986). He indicated that the cervical pain radiated to the left shoulder. Physical examination revealed full range of motion in the neck. Strength was 5/5 in both upper extremities. It was noted that X-rays in October 1990 revealed mild cervical spondylosis at C2-C7. Treatment included ultrasound to the left shoulder for three weeks. Thereafter, the records show treatment for neck pain in 1997 and 1998. In June 1998, the veteran testified that he hurt his neck in service doing squats during weight training. He had no treatment in service. He indicated that the first time he noticed any neck problems was in 1984 or 1985 when he heard bubbles going up his neck. A doctor X-rayed it and told him that it was fractured. The veteran stated that he was not actually claiming a separate left shoulder disability but was claiming that it was part of the neck problem. He indicated that doctors performed electrical tests and decided that no nerve damage was present. See June 1998 hearing transcript. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Accordingly, to establish a well-grounded claim, there must be competent evidence of incurrence or aggravation of a disease or injury in service, of a current disability and of a nexus between the inservice injury or disease and the current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In this case, there is no competent evidence of record to support the contention that that there is a relationship between the veteran's active service and his current cervical spine and left shoulder disabilities. While the medical evidence reflects that the veteran currently has degenerative joint disease of C2-C7, it fails to link the disabilities to any inservice injury. Because the medical evidence fails to link any current cervical spine or left shoulder disability to service, the claims for service connection are not plausible and, therefore, not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). The Board rejects the veteran's assertions of present disabilities attributable to service as probative of a well- grounded claim. Such opinions involve medical causation or medical diagnosis as to the effect that the claims are "plausible" or "possible" as required by Grottveit. As the Court held in Espiritu v. Derwinski, 2 Vet.App. 492 (1992), lay persons are not competent to offer medical opinions, so the assertions of lay persons concerning medical causation cannot constitute evidence of a well-grounded claim. If the veteran fails to submit evidence in support of a plausible claim, the VA is under no duty to assist the veteran in any further development of the claim. See 38 U.S.C.A. § 5107(a); Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well-grounded). Further, the veteran's burden to submit evidence sufficient to establish a well-grounded claim is the veteran's alone and is not relieved by the benefit of the doubt provision. See 38 U.S.C.A. § 5107(b); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well grounded analysis." See Meyer v. Brown, 9 Vet.App. 425, 432 (1996). As the foregoing explains the need for competent evidence of a current disability which is linked by competent medical evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disabilities. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). III. Increased Rating Initially, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts have been properly and sufficiently developed, and that no further assistance to the veteran is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107. Factual Background In an August 1998 rating decision, the RO granted service connection for hysterical neurosis, conversion type, evaluated as noncompensably disabling. The award was based on the service medical records and a report of VA examination in July 1988. In July 1996, the veteran sought an increased rating for hysterical neurosis, conversion type. On VA psychiatric examination in September 1996, the veteran reported that he was laid off work in June 1996 due to a job incident in which a trailer dropped off the truck he was driving. He indicated that he had few close relationships, no friends, and generally felt taken advantage of by people. Mental status examination described the veteran as alert, oriented, pleasant, cooperative, with appropriate effect, and well modulated. He denied any problems with sleep or appetite disturbances unrelated to his psychosocial circumstances. His overall mood appeared no more than mildly depressed. He was preoccupied with his recent health problems and how they interfered with his inability to work and how he felt victimized by his employer and by his family. No evidence of cognitive impairment or a psychotic disorder was shown. The diagnoses were pain disorder and alcohol abuse. In June 1998, the veteran testified that he had been reluctant to acknowledge his psychiatric disorder. He denied receiving any treatment or medication. He stated that he read self-help and religious books. He was not currently depressed. He became angry easily. He spent the day drinking coffee, driving around and walking on the beach. See June 1998 hearing transcript. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. By regulatory amendment, which became effective from November 7, 1996, substantive changes were made to the schedular criteria for evaluating psychiatric disorders, previously set forth in 38 C.F.R. §§ 4.125-4.132. See 61 Fed. Reg. 52695- 52702 (1996). The revised regulations pertaining to the evaluative criteria for the veteran's service-connected hysterical neurosis, conversion type are now codified at 38 C.F.R. § 4.130, Diagnostic Code 9424 (1999). When the law or regulations change during an appeal period, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). As the veteran filed his increased rating claim prior to November 7, 1996, his claim must be evaluated under both the former and the revised criteria. Prior to the November 1996 amendments, the Rating Schedule provided a noncompensable evaluation for a psychoneurotic disorder, such as hysterical neurosis, conversion type, when there were neurotic symptoms which may somewhat adversely affect relationships with others, but which did not cause impairment of working ability. A 10 percent disability was warranted when there was evidence of emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9402. Following the November 1996 amendments to the Rating Schedule, a noncompensable rating is assigned if a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent evaluation is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or when symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9424. After evaluating the evidence, the Board concludes that the veteran's service-connected psychiatric disorder more nearly approximates the criteria for the current noncompensable evaluation, rather than the criteria for a 10 percent rating under either the old or the new criteria. The Board notes that there is no evidence showing that the veteran's conversion disorder results in social and industrial impairment. The veteran, himself, has denied receiving any treatment or medication for the condition. Although the veteran was mildly depressed on the September 1996 VA psychiatric examination, there was no evidence of cognitive impairment or of a psychotic disorder on evaluation. Taking these facts into consideration, the evidence clearly shows that the veteran's conversion disorder does not meet the criteria for a 10 percent evaluation under either the old or the new criteria. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.132, Diagnostic Code 9402 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9424 (1999). In reaching this conclusion, the Board has given due consideration to the provisions of 38 C.F.R. § 4.7 and the doctrine of reasonable doubt. However, the evidence of record does not show that the manifestations of the veteran's disability more closely approximate those required for a higher rating than they do the rating currently assigned. Additionally, the Board finds that the evidence of record does not provide an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 4.7; 38 U.S.C.A. § 5107. ORDER The application to reopen the claim for service connection for a low back disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to a compensable rating for hysterical neurosis, conversion type, is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals