Citation Nr: 0000324 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-39 240 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for nasal disability, postoperative status. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to service connection for a seizure disorder. 4. Entitlement to service connection for esophageal reflux. 5. Entitlement to VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & West Supp. 1998). 6. Entitlement to VA disability compensation for left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151. 7. Entitlement to VA disability compensation for right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151. 8. Entitlement to VA disability compensation for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151. 9. Entitlement to an increased rating for temporomandibular joint dysfunction, currently rated as 20 percent disabling. 10. Entitlement to an increased (compensable) rating for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from March 1955 to March 1957. In October 1987, the VA Regional Office (RO) in Chicago, Illinois, denied entitlement to service connection for nasal disability, postoperative status, of which denial the veteran was notified in November 1987. In response to the veteran's Notice of Disagreement, a Statement of the Case (SOC) was mailed to him in April 1988. Thereafter, the veteran did not file a Substantive Appeal within 60 days from the date of the mailing of the SOC or within the remainder of the one-year period from the date of mailing of the November 1987 notification. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions, the earliest of which was entered in December 1993, of the RO. Hearings were held before a hearing officer at the RO in February 1995 and in March 1998. The appeal was docketed at the Board in 1996. The first eight issues listed on the title page will be addressed in the decision below. The final two issues listed on the title page will be addressed in a remand appearing at the end of the decision. FINDINGS OF FACT 1. In October 1987, the RO denied entitlement to service connection for nasal disability, postoperative status, of which denial the veteran was notified in November 1987. In response to the veteran's Notice of Disagreement, a SOC was mailed to him in April 1988. Thereafter, the veteran did not file a Substantive Appeal within 60 days from the date of the mailing of the SOC or within the remainder of the one-year period from the date of mailing of the November 1987 notification. 2. The additional evidence received since the unappealed October 1987 rating denial of service connection for nasal disability, postoperative status, is, in its entirety, cumulative to that previously of record and is, in its entirety, not so significant that it must be considered in order to fairly decide the claim. 3. The claims for service connection for cervical spine disability, a seizure disorder and for esophageal reflux are, in each instance, not plausible. 4. The claims for VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151, left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151, right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151 and for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151 are, in each instance, not plausible. CONCLUSIONS OF LAW 1. Evidence received since the unappealed October 1987 rating denial of service connection for nasal disability, postoperative status, is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claims for service connection for cervical spine disability, a seizure disorder and for esophageal reflux are, in each instance, not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claims for VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151, left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151, right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151 and for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151 are, in each instance, not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence, Nasal Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §1131 (West 1991). The October 1987 rating denial of service connection for nasal disability, postoperative status, is final, based upon the evidence then of record. 38 U.S.C.A. § 7105 (West 1991). However, if new and material evidence is submitted, a previously denied claim must be reopened. 38 U.S.C.A. § 5108. Therefore, the issue for appellate determination is whether the evidence received since the October 1987 decision is new and material under the provisions of 38 C.F.R. § 3.156(a). In accordance with 38 C.F.R. § 3.156(a), "[n]ew and material evidence means evidence not previously submitted to agency decisionmakers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." In denying service connection for nasal disability, postoperative status, in October 1987, the RO observed that the veteran's nasal condition had preexisted his entrance into service and that inservice surgeries were remedial in nature. Evidence of record in October 1987 included the veteran's service medical records. In April 1954, the veteran is shown to have presented with complaints including right-sided breathing difficulty. He related that he had injured his nose prior to service in an athletic mishap, and that he had sustained subsequent injury in service in March 1954. An apparently related DD Form 481-3 reflected that in "February 1954" the veteran, when falling, had struck his head on a curb. On examination (in April 1954), the veteran was found to have septal deviation to the right. Corrective surgery was accomplished in May 1954 and again in August 1956. Subsequent to service, when he was examined by VA in June 1987, the veteran related having fractured his nose in May 1987, in response to which corrective surgery was reportedly performed. Evidence added to the record since October 1987 includes a xerox copy of the above-cited DD Form 481-3 service medical item. In addition, when he was examined by VA in February 1994, the veteran related that he had on two occasions undergone surgery in service to correct a septal deviation. He also indicated that he had undergone corrective surgery, for a third time, by VA in the late 1980's. In considering whether new and material evidence has been submitted to reopen his related claim for service connection for nasal disability, postoperative status, the Board has determined that the evidence added to the record since October 1987 is not new and material. In reaching such conclusion, the Board is constrained to point out that the report pertaining to the veteran's February 1994 VA examination reflects information (i.e., the veteran's previous corrective surgeries in response to septal deviation) of which the RO had notice in October 1987. Accordingly, the information reflected on the February 1994 examination report is 'cumulative' to that of which the RO was previously aware, and thus such examination report is pertinently, in accordance with the related aspect of 38 C.F.R. § 3.156(a), not 'new'. Further, the recently received xerox copy of the above-cited DD Form 481-3 service medical item is a duplicate of the corresponding item which was in the RO's possession in October 1987 and thus such item, in accordance with the related aspect of 38 C.F.R. § 3.156(a), is not 'new'. In light of the above observations, then, it is concluded that no item of 'new and material' evidence, in accordance with the above-cited provisions of 38 C.F.R. § 3.156(a), has been submitted in conjunction with the veteran's attempt to reopen his claim for service connection for nasal disability, postoperative status. Therefore, such claim is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). II. Cervical Spine Disability III. Seizure Disorder IV. Esophageal Reflux The threshold question to be answered concerning the veteran's claims for VA compensation relative to each disability included in issues II through VIII is whether he has presented, with respect to each disability, evidence of a well grounded claim, that is, one which is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a claimant does not submit evidence of a well grounded claim, VA is under no duty to assist him in developing facts pertinent to such claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990). For the reasons set forth below, the Board finds that the veteran has not met his burden of submitting evidence to support a belief by a reasonable individual that his claims for VA compensation included in issues II through VIII are, in any instance, well grounded. With respect to his claim for service connection for cervical spine disability, the veteran contends, in essence, that he presently has the same and that it is, moreover, of service origin. In this regard, service medical records are negative for any reference to a cervical spine/neck problem. Subsequent to service, the veteran is shown to have injured his neck in a motor vehicle accident in 1984. Thereafter, a VA outpatient treatment report dated in May 1987 reflects that the veteran noticed increased neck pain with "a sudden....movement". In September 1987, a cervical discectomy was accomplished at a VA facility. Most recently, when the veteran was examined by VA in February 1994, the pertinent examination diagnosis was post-cervical discectomy, with residual pain. In considering the veteran's related claim for service connection for cervical spine disability, the Board would stress that the apparently initial episode of cervical trauma sustained by the veteran transpired in the 1980's, many years after his discharge from service. In any event, there is no evidence relating his presently shown cervical disc pathology (postoperative status) to his period of service. In the absence of such evidence, a plausible claim for service connection for cervical spine disability is not presented. See Grottveit v. Brown, 5 Vet. App. 91 (1993). Such claim is, therefore, not well grounded. 38 U.S.C.A. § 5107(a). Concerning his claim for service connection for a seizure disorder, the veteran essentially contends that he currently has the same due to service. In this regard, service medical records are negative for any reference to a seizure disorder. Subsequent to service, a report pertaining to the veteran's presentation for VA outpatient treatment in February 1993 reflects that he on such occasion alluded to experiencing episodes in which he would "blank[] out"; the impression was partial complex seizures, by history. Thereafter, when he was examined by VA in February 1994, the veteran indicated that "[s]ince 1987" he had experienced short episodes of loss of consciousness; he also indicated that he had been prescribed anti-convulsant medications which, however, he had declined to take owing to his concern that the medication would affect his blood count. The related examination diagnosis was convulsive disorder. In considering the veteran's claim for service connection for a seizure disorder, the Board would observe that, based on the record as well as the veteran's own related history, he initially experienced seizures many years after he had been discharged from service. There is, moreover, no evidence relating his seizure episodes to his period of service. Without such evidence, a plausible claim for service connection for a seizure disorder is not presented and, accordingly, such claim is not well grounded. 38 U.S.C.A. § 5107(a). As pertinent to his claim for service connection for esophageal reflux, the veteran avers, in substance, that he presently has the same due to service. In this regard, service medical records are negative for any reference to esophageal reflux. Subsequent to service, when he was examined by VA in February 1994, the veteran complained of having "severe esophageal reflux which cause[d] a foul taste in his mouth." The pertinent examination diagnosis implicated severe esophageal reflux. In considering the veteran's claim for service connection for esophageal reflux, the Board is constrained to point out that, in addition to there being no evidence reflecting that the veteran experienced esophageal reflux is service, there is, saliently, no evidence relating his reflux to service. In the absence of such evidence, then, a plausible claim for service connection for esophageal reflux is not presented and, therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). V. Cervical Spine Disability, 38 U.S.C.A. § 1151 VI. Left Knee Disability, 38 U.S.C.A. § 1151 VII. Right Shoulder Disability, 38 U.S.C.A. § 1151 VIII. Low Back Disability, 38 U.S.C.A. § 1151 Under the law, in the context of this issues V through VIII on appeal, where it is ascertained "that there is additional disability resulting from VA treatment", compensation will be payable for such additional disability. 38 U.S.C.A. § 1151. In addition, to any extent that an allegation of negligence or fault on the part of VA may inhere in any aspect of the veteran's related below-cited contentions, the Board is cognizant that the provisions of 38 U.S.C.A. § 1151 have been interpreted as containing no negligence or fault requirement, see generally Gardner v. Brown, 115 S.Ct. 552 (1994), and the analysis advanced by the Board hereinbelow specifically contemplates such interpretation. Regarding the veteran's claim for VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151, he asserts that he underwent corrective surgery by VA in 1987 in response to cervical disc disease. As his allegation that he sustained 'additional disability' as a result of the surgery, he alleges, as gleaned from his testimony at his March 1998 hearing, that subsequent to the surgery he experienced for the first time "horrible instances of passing out". In this regard, the record reflects that, in conjunction with his hospitalization at a VA facility in August-October 1987, the veteran underwent a cervical discectomy. However, although the veteran (as noted above) is shown to have a convulsive disorder, there is no evidence relating it to his 1987 cervical discectomy, and the record does not otherwise document any clinical findings representative of pertinent 'additional' disability traceable to such surgery. In view of the foregoing, then, a plausible claim for VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151 is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). Concerning the veteran's claim for VA disability compensation for left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151, he asserts that he underwent arthroscopic surgery by VA involving his left knee in 1987. As his allegation that he sustained 'additional disability' as a result of the surgery, he alleges, as gleaned from his testimony at his March 1998 hearing, that although his knee no longer gave way, unlike prior thereto, subsequent to the surgery, he was, as a result of the surgery, rendered unable to "kneel". However, even ignoring that there is no clinical evidence attributing the veteran's asserted inability to 'kneel' to the 1987 arthroscopic surgery, the Board is constrained to observe that at his March 1998 hearing the veteran himself testified that his kneeling problems went back to "1954" when he fell in service. Given the foregoing observation, then, and inasmuch as the record does not otherwise document any clinical findings representative of pertinent 'additional' disability traceable to the VA arthroscopic surgery, a plausible claim for VA disability compensation for left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151 is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). With respect to the veteran's claim for VA disability compensation for right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151, he asserts that he underwent pertinent surgery by VA in 1988 in response to a preoperative diagnosis that implicated a right torn rotator cuff. As his allegation that he sustained 'additional disability' as a result of the surgery, he testified, at his March 1998 hearing, that he is not certain whether he in fact had "a torn rotator" cuff and if not the surgery was unnecessary. However, the report pertaining to the veteran's July 1988 surgery, i.e., a "[r]ight partial acromioplasty and rotator cuff repair", specifically reflects that an injection of saline into the shoulder joint revealed a tear in the rotator cuff of a "2 to 3 millimeter[]" dimension. Given such clinical ascertainment of a torn rotator cuff (which documentary evidence facially refutes the veteran's related contention), then, and inasmuch as the record does not otherwise document any clinical findings representative of pertinent 'additional' disability traceable to the July 1988 VA surgery, a plausible claim for VA disability compensation for right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151 is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). Concerning the veteran's claim for VA disability compensation for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151, he asserts that he never underwent surgery by VA involving his lumbar spine. However, as his allegation that he sustained 'additional disability' for which VA is responsible, he clarified at his March 1998 hearing that a VA physician had advised him that he needed pertinent surgery but that in view of the veteran's age "something really bad could happen" and that he (i.e., the veteran) therefore elected not to have the surgery. The Board acknowledges the veteran's foregoing assertion. However, even ignoring that the veteran does not allege and the record does not document any conceivable indicia of related 'additional' disability for which VA might be responsible, the Board would emphasize that the desired relief sought by the veteran is affirmatively predicated on the rendering of VA treatment as opposed to, at least in the absence of any notion of fault (which the veteran has not alleged), the non-rendering of the same. See generally, 38 U.S.C.A. § 1151. Since this aspect of the veteran's appeal is specifically predicated on the latter, i.e., the non-rendering of treatment, and without any evidence reflecting pertinent 'additional' disability in any event, a plausible claim for VA disability compensation for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151 is not presented. Therefore, such claim is not well grounded. 38 U.S.C.A. § 5107(a). In addition, although the Board has considered and disposed of the veteran's latter seven claims for VA compensation on a ground different from that of the RO, the veteran has not been prejudiced by the Board's decision. This is because, in assuming that these claims were well grounded, the RO accorded the veteran greater consideration than the claims in any instance warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether these claims are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992). Finally, as pertinent to each of the latter seven above- addressed claims, the Board is of the opinion that its discussion above bearing on each claim is sufficient, as to each respective disability for which VA compensation is claimed, to inform the veteran of the elements necessary to complete his application for the desired benefit relative to each corresponding disability. See Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER New and material evidence not having been submitted, the veteran's application to reopen his claim for service connection for nasal disability, postoperative status, is, denied. Evidence of well grounded claims not having been submitted, the appeal for service connection for cervical spine disability, a seizure disorder and for esophageal reflux is, in each instance, denied. Evidence of well grounded claims not having been submitted, the appeal for VA disability compensation for cervical spine disability pursuant to the provisions of 38 U.S.C.A. § 1151, left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151, right shoulder disability pursuant to the provisions of 38 U.S.C.A. § 1151 and for low back disability pursuant to the provisions of 38 U.S.C.A. § 1151 is, in each instance, denied. REMAND Concerning the veteran's claim for an increased rating for his service-connected temporomandibular joint (TMJ) dysfunction, which is well grounded pursuant to the provisions of 38 U.S.C.A. § 5107, such disability is currently rated as 20 percent disabling, the maximum rating authorized under the schedular criteria of 38 C.F.R. Part 4, Diagnostic Code 9904 (1999). A 30 percent rating (or higher) might be awarded pursuant to the provisions of Diagnostic Code 9905. However, although the criteria of such latter Diagnostic Code implicates the inter-incisal range (expressed in millimeters) of temporomandibular articulation, the pertinent record is devoid of any clinical evidence bearing on the same. Therefore, the Board is of the opinion that pertinent examination by VA, as specified in greater detail below, must be accomplished before this aspect of the appeal may be adjudicated by the Board. Further development to facilitate the accomplishment of the same is, accordingly, specified below. Regarding the veteran's claim for an increased rating for his service-connected right ear hearing loss, which is well grounded pursuant to the provisions of 38 U.S.C.A. § 5107, the record reflects that it has been a number of years since he has undergone VA audiometric examination. Consequently, the Board is of the opinion that pertinent examination by VA, as is specified in greater detail below, must be performed before further appellate action ensues. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the veteran to undergo the following VA examinations: (a.) A VA dental examination to determine the current severity of the veteran's service-connected TMJ dysfunction. It is essential that the dimensions (expressed in millimeters) of the inter-incisal range of temporomandibular articulation be ascertained. Any special diagnostic studies deemed necessary should be performed, and the claims folder should be made available to the examiner for review prior to the examination. (b.) A VA audiometric evaluation to determine the current severity of the veteran's service-connected right ear hearing loss. Any special diagnostic studies deemed necessary should be performed, and the claims folder should be made available to the examiner for review prior to the examination. 2. The RO should then review the reports pertaining to each VA examination performed in response to the previous numerical directive to ascertain whether each examination is in compliance with the Board's respective examination instructions. 3. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate each of the final two enumerated issues on appeal. 4. If either of remaining benefit sought on appeal is not granted to the veteran's satisfaction, or if he expresses disagreement pertaining to any other matter, both he and his representative should be provided with an appropriate Supplemental Statement of the Case. The veteran should be provided appropriate notice of the requirements to perfect an appeal with respect to any issue(s) addressed therein which does not appear on the title page of this decision. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals