BVA9500705 DOCKET NO. 93-03 328 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a low back disability and a neck disability. 2. Whether new and material evidence has been submitted to reopen the veteran's claims for service connection for bilateral knee disability and a sinus disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Marshall O. Potter, Jr., Associate Counsel INTRODUCTION The veteran served on active duty from March 1973 to July 1975. In December 1975 the Department of Veterans Affairs (VA) Wichita, Kansas, Regional Office (RO) denied the veteran's claim for service connection for sinusitis. No timely appeal was filed. In February 1980 the Board of Veterans' Appeals (Board) denied the veteran's claim for service connection for a bilateral knee disability. In July 1991 the veteran applied to reopen his claims for service connection for a bilateral knee disability and a sinus disorder. He also sought service connection for a neck disability and a low back disability. This appeal arises from a February 1992 RO decision that denied the veteran's application to reopen his claims for service connection for a bilateral knee disability and a sinus disorder. The appeal also arises from the RO's denial of the veteran's claims for service connection for a low back disability and a neck disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he has low back and neck disabilities resulted from an automobile accident that occurred while he was in service. He argues that the evidence he has submitted in support of his application to reopen claims for service connection for a bilateral knee disability and sinus disorder is new and material and establishes that those disabilities were incurred in service. 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 is against the claims for service connection for a low back disability and a neck disability. It is also the decision of the Board that new and material evidence has not been submitted to reopen a claim for service connection for a sinus disorder. It is also the decision of the Board that a previously denied claim for service connection for a bilateral knee disability has been reopened, and the evidence supports service connection for that disorder. FINDINGS OF FACT 1. The veteran had acute and transitory episodes of low back and neck symptoms in service, which resolved without residual disability. 2. Current low back and neck disorders began years after service and were not caused by any incident in service. 3. In December 1975 the RO denied the veteran's claim for service connection for a sinus disorder; no timely appeal was initiated; and in July 1991 he applied to reopen his claim. 4. The evidence received since the December 1975 RO decision, which denied service connection for a sinus disorder, is cumulative and redundant, or when viewed in the context of all the evidence does not raise a reasonable possibility of a change in the prior adverse outcome. 5. Service connection for a bilateral knee disability was denied by the Board in February 1980, and in July 1991 the veteran applied to reopen his claim. 6. The evidence received since the February 1980 decision includes some evidence, not previously considered, which, when viewed in the context of all the evidence, raises a reasonable possibility of a change in the prior adverse outcome; the entire evidence of record establishes that the veteran has a bilateral knee disorder (chondromalacia patellae) which began in service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). 2. A neck disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The additional evidence submitted since the December 1975 RO decision to deny service connection for a sinus disorder is not new and material; thus the claim is not reopened; and the December 1975 RO decision is final. 38 U.S.C.A. §§ 5108, 7105; C.F.R. § 3.156. 4. The additional evidence submitted subsequent to the February 1980 Board decision to deny service connection for a bilateral knee disability is new and material; the claim for service connection for this disability is reopened; and a bilateral knee disability (chondromalacial patellae) was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b), 5108, 7104; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that, at his induction examination conducted in March 1973, the clinical evaluations of the neck, sinuses, lower extremities and spine were normal. At that time, he reported a history of hay fever, chronic cough, and asthma. In June 1973 he complained of pain in the left knee and down his leg. In September 1973 he reported that he injured his back while doing "PT." X-ray films of the lumbar spine were taken and were within normal limits. He was put on light duty for three days. In December 1973 he complained of bilateral knee pain, the knee giving way, and recurrent effusion. No effusion was observed at that time. He was observed to have good ligaments. His range of motion was normal. There was moderate chondromalacia. A McMurray's test was negative. The diagnosis was chondromalacia. The service medical records also show that in January 1974, the veteran was evaluated at an allergy clinic for complaints of nasal congestion and asthma. He reported having asthma for several years, but not requiring medical treatment for it except for allergy desensitization. He also reported having persistent rhinitis that was apparently worse in the fall but present year round. He reported considerable improvement during the period of 1967 to 1971 when he received desensitization shots. He reported sensitivity to various allergens. On examination there was considerable inflammation and swelling of the nasal mucosa. The doctor commented that the veteran had some allergic rhinitis and mild asthma that was aggravated by dust and heavy smoking. The impression was seasonal exacerbation of perennial rhinitis secondary to inhalant allergies, mild intrinsic asthma, and multiple orthopedic complaints. In April 1974 he complained of headaches and joint stiffness. He reported being exposed to cold weather over the preceding weekend. The service medical records also show that, on June 7, 1974, the veteran sought medical treatment at a service clinic with complaints concerning allergy and asthma, and pain in his neck, knees, back and feet. He gave a history of having taken hyposensitization treatment for allergies prior to service. It was noted he had allergic rhinitis, conjunctivitis, and wheezing in the past. On examination, there was a full range of motion of the neck and back, with no limitations. There was no obvious joint deformity seen on examination. The impressions were extrinsic asthma, allergic rhinitis, and arthralgia of unknown etiology. In February 1975 he underwent an orthopedic evaluation. He complained of bilateral chondromalacia. The examination and history were considered to be compatible with chondromalacia. He was provided with a physical profile that listed the defects as arthritis of both kneecaps--bilateral chondromalacia. He was excused from formation marching, running, double-timing and physical therapy involving the lower extremities. These conditions were considered to be permanent. The service medical records also show episodes of medical treatment for upper respiratory infections and allergies. The veteran's service medical records show that in June 1975 he underwent a physical examination in connection with his separation from service. At that time he gave a history of swollen or painful joints, hay fever, asthma, shortness of breath, arthritis, lameness and recurrent back pain. On examination, clinical evaluations of the sinuses, neck and spine were reported to be normal. Clinical examination of the lower extremities was noted to be normal, although it was also noted that he had been issued a permanent physical profile for arthritis of both kneecaps and bilateral chondromalacia. In July 1975 the veteran submitted a Statement of Medical Condition in which he reported his knees were arthritic and that his allergies had worsened. In August 1975 the veteran submitted a claim for compensation for various disabilities, including arthritis of the knees and allergies. No claim was filed for a low back disability, a neck disability or sinus disorder. In October 1975 the veteran underwent general, orthopedic and ear, nose and throat (ENT) VA examinations. On the general examination he reported having asthma in childhood, but none since age 12. He reported no dyspnea. He said he was rarely subject to slight wheezing when he was around pollen in excessive amounts. He reported no cough or spit, but that he was subject to drainage from his sinuses. The respiratory system was normal on clinical evaluation. The diagnosis was extrinsic asthma until age 12 by history, not found on this examination. On the VA ENT examination the veteran reported that prior to service and while on active duty he received medications for allergies. He reported having allergy symptoms included nasal obstruction, excessive nasal discharge and episodic sneezing. He reported they occurred year round and were worse in the spring and summer months. On examination the external nose was not remarkable. The nasal septum was essentially straight. There was marked pallor and bogginess of the nasal mucosa covering the turbinates. The turbinates were swollen almost in opposition with the nasal septum. There was an abundance of mucosa serous secretions. X-ray films of the paranasal sinuses were interpreted as showing the frontal, sphenoid and ethmoid sinuses to be normal, bilaterally. The maxillary sinuses had thickened mucosa with probable fluid level, bilaterally. The diagnoses were allergic rhinitis, moderately severe due to dust and mixed pollens; and maxillary subacute sinusitis, probably allergic type and due to allergic rhinitis. At the VA special orthopedic examination the veteran reported that he had developed knee pain in 1973 with no history of injury as the cause of onset. He reported these developed while he was in infantry training. He said that arthritis of the knees was diagnosed in 1974. On examination, the veteran complained of pain and local tenderness to palpation on the medial and posterior aspects of both knees. Palpation was negative for deformity, soft tissue swelling, or joint effusion. There was no inflammatory reaction in either knee or evidence of soft tissue atrophy. Tibial tortional tests were negative, bilaterally. The cruciate and collateral ligaments were intact. There was a full range of motion in both knees without associated pain or crepitation. Patellae were mobile, bilaterally, without pain or crepitation. There was no evidence of quadriceps atrophy in either thigh. X-ray films of the knees were interpreted as showing some narrowing of the medial joint space of both knees, with no other evidence of abnormality. The doctor reported there was a negative examination for both knees. In a December 1975 decision the RO denied service connection for sinusitis and a bilateral knee disability. The veteran was notified of the decision, and of his appellate rights, but he did not appeal. S. C. Bansal, M.D., reported that he had seen the veteran in January 1979 with complaints of bilateral knee pain of three years duration. The pain was said to be in the patellofemoral joint. The veteran reported that the symptoms had started while on active duty. On examination, Dr. Bansal found the knees were tender in the patellofemoral joint and there was pain on extreme flexion and restricted extension. There was slight generalized joint laxity and hypermobility of the patella. The doctor's diagnosis was chondromalacia of the patellae. Robert L. Conley, D.C., examined the veteran in January 1979 and observed the veteran had crepitus on both knees between the patella and femur. The doctor's diagnosis was patellar chondromalacia of both knees. Ray N. Conley, D.C., took X-ray films of the veteran's knees in January 1979 and interpreted them as showing findings that would be consistent with a diagnosis of chondromalacia patellae, bilaterally. In March 1979 the veteran underwent a VA examination. At that time the veteran's complaints included pain over the anterior aspect of both knees when standing and walking. He reported that he had noticed this pain while in the service after having done considerable marching. He reported the pain had continued. On examination of the knees there was a normal contour, bilaterally. He indicated an area about the patellae as the site of discomfort. The veteran was able to sit, stand and walk without marked difficulty. There was no thickening of the synovial membranes and no effusion present in either knee. On flexion and extension of the knees, there was no appreciable subpatellar crepitation. The medial collateral, lateral collateral and anteroposterior cruciate ligaments were intact. The range of motion on extension was 180 degrees, bilaterally, and 160 degrees on flexion, bilaterally. The circumference measurements of the knee, thigh and calf were equal, bilaterally. X-ray films of both knees were interpreted as being within normal limits. The diagnosis included no objective evidence of disease or disability in either knee. The RO again denied service connection for a bilateral knee disability in a May 1979 decision. In a February 1980 decision the Board denied service connection for a bilateral knee disability. A photocopy of the veteran's letter dated in August 1981 to Senator Robert Dole contains a statement that he continued to have knee symptoms. In August 1985 the veteran was admitted to the Humana Hospital- Overland Park for complaints of sinus drainage and sinus headaches. On examination his nares revealed nasoseptal deviation with narrow occlusion of the nostrils. There was also tenderness over the maxillary and frontal sinuses. A pathology report indicated he had mucous inflammatory exudate from both maxillary sinuses. There was also an irregular bone and cartilage formation with deformity from a post-traumatic nasoseptal deviation. There was also chronic sinusitis of the right maxillary sinus with an area of fibrosis when lying down and chronic sinusitis of the left maxillary sinus with irregular fibrosis of the periosteum with underlying Koppel deformity. General examination at that time showed a normal neck, back, and extremities. He underwent a bilateral septoplasty and bilateral Caldwell-Luc procedure. The diagnoses were deviated nasal septum and post-traumatic chronic maxillary sinusitis, bilaterally. In July 1991 the veteran applied to reopen previously denied claims for service connection for disabilities of the knees and sinuses. He also claimed service connection for neck and back conditions. In September 1991 the veteran submitted VA Form 21-4176 (Report of Accidental Injury) in which he reported that on June 9, 1974, he had been struck by another vehicle and felt numbness and aching in his neck and back. He reported being taken to Shawnee Mission Hospital. In October 1991 the veteran underwent a VA examination. He gave a history of recurrent attacks of sinusitis for 15 years. He reported having a considerable amount of nasal congestion that was worse in the summertime. He reported undergoing surgery in 1985 for maxillary sinusitis. On examination the nasal passages were clear. There was no pathology found in the mouth or throat. The neck was supple with no masses palpated. His respiratory system was described as normal. X-ray films of the sinuses were interpreted as being consistent with mucoperiosteal thickening of both maxillary sinuses. The diagnosis was maxillary sinusitis. At a VA examination conducted later in October 1991, the veteran complained of bilateral knee pain that began in 1975. He complained of having trouble with stairs and squatting. He said there was no swelling, locking or giving way of the knees. He also complained of neck and low back pain. He reported the neck and low back pain began when he was struck from behind in a motor vehicle accident in 1974. He reported that since that time he has gone to a chiropractor with some relief. He complained of pain on bending. On examination of the knees he had a 0- to 150-degree range of motion, bilaterally. He had ligamentous laxity that was classified as Grade I throughout. There was no effusion. He had bilateral patellofemoral compression pain. On examination of the neck, he was able to flex his neck to touch his chin to his chest. There was normal neck extension and normal right and left rotation to approximately 80 degrees. As for his back, he could touch the lower tibial region. He had good extension and side-to-side bending. A straight leg raising test was questionably positive on the right. There was some degree of thigh pain; however, neurologically he had 5/5 motor strength in both lower extremities and upper extremities. His sensation was intact to light touch and his deep tendon reflexes were two plus/four and symmetric. X-ray films of the cervical spine were taken and were interpreted as being normal. X-rays of the knee showed no fracture, dislocation, significant joint space narrowing, or effusion. X-ray films of the lower back showed no abnormality. The impressions were bilateral patellofemoral chondrosis, and lumbar and cervical strain. In November 1991 a photocopy of a Kansas Vehicle Accident Report was submitted by the veteran. That report showed that on June 9, 1974, the veteran had been involved in an automobile accident. It was noted that he complained of a neck injury and was sent to a hospital for evaluation. In December 1991 a photocopy of an emergency room report from the Shawnee Mission Medical Center was submitted, indicating that, following an auto accident, the veteran was examined on the night of June 9-10, 1974, for a possible injury of the back and neck. X-rays were interpreted showing no evidence of fracture, limitation of motion in flexion with reversal of the cervical curve at C3-C4, and lateral displacement of the atlas with relation to the axis. The significance of the latter change was not determined. The diagnosis was cervical sprain, and conservative treatment was prescribed. II. Analysis The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. All relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist him. Id. A. Entitlement to Service Connection for a Low Back Disability Service connection may be granted for disability resulting from disease or injury incurred or aggravated during military service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) The veteran had complaints of back pain in service in September 1973 and June 1974. The service medical records contain no reference to residuals of each episode. Specifically, the X-ray films taken after the first episode were interpreted as being normal. At the time of the second episode, he was observed to have a full range of back motion. Medical records from Shawnee Mission Hospital, related to a June 1974 vehicle accident, refer to a neck , but not a low back, injury. The veteran reported a history of frequent low back pain at the time of his June 1975 service discharge examination. Yet a physical examination conducted at that time showed no objective signs of a back disability. When he submitted his original claim for compensation in August 1975, he referred to several disabilities, but not a low back impairment. Moreover, while undergoing a special VA orthopedic examination in October 1975, he had no complaints of a low back disability. The first documented medical evidence of a low back disability after service was not until the VA examination in October 1991, over 15 years after service. The evidence establishes that the low back symptoms during service were merely acute and transitory, fully resolving without residual disability. The absence of medical evidence of a low back condition for so many years after service tends to show an absence of continuity of symptoms since service. Mense v. Derwinski, 1 Vet.App. 354 (1991). There is no probative evidence to link lumbar strain, diagnosed at the 1991 VA examination, with remote incidents of service. The preponderance of the evidence establishes that a low back disorder was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Entitlement to Service Connection for a Neck Disability Records from the time of service show the veteran was treated for a cervical sprain in June 1974, following an automobile accident. However, the service medical records indicate he did not receive any follow-up treatment for that injury for the remainder of his military service, a period of about one year. The neck was clinically normal at the June 1975 discharge examination. Moreover, when filing his initial claim for compensation, in August 1975, the veteran made no reference to a neck disability. The first post-service medical evidence of a neck problem was not until the October 1991 VA examination. Clinical and X-ray findings were essentially normal at that examination, although there was an impression of cervical strain. The evidence shows only acute and transitory cervical spine symptoms in service, which full resolved without residual disability. There is no probative evidence of continuity of symptomatology after service, and no medical evidence to link the recently noted cervical strain with events of service which ended many years earlier. The Board concludes that a neck disability was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. C. Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Service Connection a Sinus Disorder The December 1975 RO denial of service connection for sinusitis became final when it was not appealed within one year of the date of the mailing of the notice. 38 U.S.C.A. § 7105. Thus the claim may not be reopened without the submission of new and material evidence. 38 C.F.R. § 5108; Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be new, it must not be redundant or cumulative of evidence earlier of record; for evidence to be material, it must be relevant and probative of the issue at hand, and when viewed in context of all the evidence it must raise a reasonable possibility of a change in the outcome of the prior adverse rating decision. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1992). Evidence available at the time of the December 1975 RO decision included service medical records, which showed no sinusitis during the veteran's March 1973-July 1975 active duty, and an October 1975 VA examination which showed sinusitis a few months after service. The evidence added to the record, relative to the claim for service connection for sinusitis, since the December 1975 RO decision consists of reports of the veteran's hospitalization at Humana Hospital in August 1985 (he underwent surgery for a deviated nasal septum and post-traumatic maxillary sinusitis) and the October 1991 VA examination (maxillary sinusitis was again diagnosed). The additional evidence refers to the post-service existence of sinusitis, a fact already known at the time of the December 1975 RO decision. Thus, the additional evidence provides cumulative, rather than new, information. The additional evidence of sinusitis after service also is not material, since it does not link the condition to events of service. Cox v. Brown, 5 Vet.App. 95 (1993). The Board finds that new and material evidence has not been submitted to reopen the previously denied claim for service connection for sinusitis. Thus, the application to reopen the claim must be denied, and the 1975 adverse RO decision remains final. D. Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Service Connection for a Bilateral Knee Disability Service connection for a bilateral knee disability was denied by the Board in February 1980. That decision is final, with the exception that the claim may be reopened if new and material evidence has been submitted. 38 U.S.C.A. §§ 5108, 7104. It is noted that the February 1980 Board decision appears to be premised, in part, on the absence of a chronic knee disability on VA examination (this also appears to be the primary rationale for adverse RO decisions in 1975 and 1979). Evidence added to the record since the 1980 Board decision includes a VA examination with a diagnosis of a knee disorder. In the judgment of the Board, new and material evidence has been submitted to reopen the previously denied claim, and thus service connection for a bilateral knee disorder has been reviewed on a de novo basis. Manio, supra. The evidence shows that during the veteran's 1973-1975 service he was repeatedly seen for bilateral knee symptoms diagnosed as chondromalacia patellae. He was given a physical profile for the condition, which was noted at the 1975 service discharge examination. The post-service medical records are mixed as to the presence or absence of a chronic knee disability. The 1975 VA examination found none. Private medical evaluations in early 1979 led to a diagnosis of chondromalacia patellae, but a subsequent VA examination in 1979 found no chronic knee disorder. Thereafter, there is a gap of many years without evidence of knee problems. A 1991 VA examination, although reported few abnormal findings, diagnosed bilateral patellofemoral chondrosis, a condition similar to that diagnosed in service. Evidence of the chronic nature of the condition during service, and continuity of symptoms after service, could be stronger. Yet the Board finds that the evidence is approximately balanced on the question of whether the currently diagnosed bilateral knee condition started in service. Giving the veteran the benefit of the doubt, 38 U.S.C.A. § 5107(b), the Board concludes that a bilateral knee disorder (chondro- malacia patellae) began during and was incurred in service, warranting service connection. ORDER Service connection for a low back disability and a neck disability is denied. New and material evidence not having been submitted, the application to reopen a previously denied claim for service connection for a sinus disorder is denied. Service connection for a bilateral knee disability (chondromalacia patellae) is granted. L. W. TOBIN 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.