BVA9504063 DOCKET NO. 93-03 103 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for disability of the hips. Whether new and material evidence to reopen a claim for service connection for a back disability has been submitted. Entitlement to an increased rating for anxiety neurosis, currently evaluated as 50 percent disabling. Entitlement to a total compensation rating by reason of individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his two daughters ATTORNEY FOR THE BOARD Neil Reiter, Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. In a rating action dated in August 1976, the regional office denied service connection for a back disability. In September 1976, a statement of the case was issued to the veteran. A timely appeal was not perfected regarding this issue. In June 1991, the veteran submitted a claim for an increased rating for his service-connected anxiety neurosis. In a rating dated August 1991, the regional office denied this claim. The veteran subsequently submitted a timely appeal relating to this denial. In a November 1991 statement and in testimony at a March 1992 hearing at the regional office, the veteran raised the issue of entitlement to service connection for a disability of the hips, and attempted to reopen his claim for service connection for a back disability. The regional office subsequently denied the veteran's claim for service connection for disability of the hips and indicated that new and material evidence to reopen the claim for service connection for the back disability had not been submitted. The veteran then timely appealed these rating determinations. In June 1992, the veteran submitted an application for a total compensation rating based on unemployability. In a rating action dated in November 1992, the regional office increased the veteran's rating for his service-connected disability of peripheral ear disease with vertigo, hearing loss, and tinnitus, from 10 percent to 60 percent, effective from July 1, 1991. His combined rating for his various service-connected disabilities increased from 60 percent to 80 percent, effective from July 1, 1991. In this rating action, the regional office determined that he was not entitled to a total compensation rating by reason of individual unemployability. It does not appear that the regional office informed the veteran of the denial of this claim for a total compensation rating by reason of individual unemployability. In any event, the Board has assumed jurisdiction of this issue in order to grant this benefit. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he hurt his hips and back in the same mine explosion in March 1945 which caused the shell fragment wounds to his legs, left arm, and face. He also contends that he is extremely nervous, and that his anxiety neurosis has increased in severity to the point that he has little social contact with others and could not work under the normal stress of a regular job. 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 new and material evidence has not been submitted sufficient to reopen the claim of entitlement to service connection for a chronic back disability. It is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for a chronic disability of the hips, or for an increased evaluation in excess of 50 percent for anxiety neurosis. It is the further decision of the Board that the veteran is entitled to a total compensation rating by reason of individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for disposition of the veteran's appeals has been obtained by the regional office. 2. In a rating action dated in August 1976, the regional office denied service connection for a back disability, and in September 1976, a statement of the case was issued to the veteran regarding this issue. A timely appeal was not perfected. 3. Additional evidence received since the August 1976 rating action denying service connection for a back disability is cumulative in nature and is not considered new and material evidence; a reasonable possibility has not been raised that this evidence would change the outcome, when viewed in the context of all of the evidence, both new and old. 4. A chronic disability of the hips was not present in service. 5. A chronic disability of the hips was first demonstrated many years after discharge from service and is not shown to be etiologically related to any incident of service. 6. The veteran's anxiety neurosis causes no more than considerable social and industrial impairment. 7. In combination, the veteran's service-connected disabilities prevent him from obtaining and pursuing gainful employment. CONCLUSIONS OF LAW 1. A chronic disability of the hips was not incurred in or aggravated by service, and arthritis of the hips may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§3.307, 3.309 (1993). 2. The evidence received since the unappealed rating determination of August 1976 denying service connection for a back disability is not new and material; therefore, it is insufficient to reopen the veteran's claim for service connection for this disability. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202 (1993). 3. The criteria for an evaluation in excess of 50 percent for anxiety neurosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, Part 4, Code 9400 (1993). 4. The criteria for a total compensation rating by reason of individual unemployability have been met. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.16, 3.340, 3.341 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that an attempt to obtain all relevant information has been made. I. Background Service medical records show that the veteran was treated for contusions and abrasions, with multiple penetrating wounds (classified as mild), of the legs, left arm and face in March 1945 as the result of an explosion of a mine. He was also treated for perforation of the left tympanic membrane and acute suppurative left otitis media. Physical examination in April 1945, while he was still hospitalized showed that he had well-healed lacerations of the left leg, left arm and face. On examination for discharge from service in October 1945, it was noted that he had incurred a shell fragment wound in March 1945, receiving injuries to the left leg, left ear and back. The service medical records are negative for any complaints, findings or diagnoses indicative of a disability of, or injury to, the hips. On a Department of Veterans Affairs (VA) examination in May 1946, the veteran reported that he was knocked unconscious for a few seconds in the explosion of the mine in March 1945, and that he had received powder burns and gravel peppering his left leg. There were no complaints or findings relating to impairment of the hips or back. On physical examination, there were minute powder burns on the posterior thigh and leg, which were barely discernible. On a special orthopedic examination in July 1946, the veteran again noted receiving the shrapnel wound to the left leg in March 1945. Physical examination of the left thigh and leg showed small, discrete areas of black pigmentation that were significant of powder wounds. These small areas did not interfere with movements of the neighboring joints or muscles. He walked without a limp, but dressed and undressed without difficulty, and moved about with ease. The diagnosis was residuals, fragment wound, thigh and leg, left, asymptomatic. On a special psychiatric examination in July 1946, the veteran related that he had been unconscious for a few moments following the March 1945 landmine explosion, and that he had received minor fragment wounds in the left leg and back. He complained of nervousness. The diagnosis was psychoneurosis, anxiety state. In a rating action dated in August 1946, the veteran was granted service connection for impaired hearing of the left ear and residuals of the shell fragment wound of the left lower extremity, both evaluated as no percent disabling. On a special orthopedic examination in December 1950, the veteran reported that he was working in construction work as a carpenter's apprentice. Physical examination showed no gross abnormalities, deformity, or atrophy of the left leg, and all motions were normal, including bending, squatting, undressing and dressing. An X-ray of the left thigh showed 3 or 4 tiny metallic foreign bodies in the soft tissue of the distal third of the thigh. In a rating action dated in January 1951, the veteran was granted a 10 percent evaluation for bilateral hearing loss. In a rating action dated in June 1963, after a VA examination, the veteran was granted a 10 percent evaluation for disability classified as residuals of a blast injury, manifested by vertigo and nausea, and his disabilities of defective hearing and residuals of a shell fragment wound of the left thigh were both evaluated as no percent disabling. The veteran was hospitalized for approximately 11 days in March 1965 with diagnoses including post-traumatic syndrome, manifested by anxiety, deafness and vertigo. It was noted that the extremities were normal. A VA examination in June 1965 resulted in a diagnosis of psychoneurosis, anxiety reaction, secondary to post-traumatic syndrome, otherwise manifested by deafness. In a rating action dated in July 1965, the veteran was granted service connection for psychoneurosis, and this disability was evaluated as 30 percent disabling. The narrative portion of the rating action reflects that the disability was "associated to" the post-traumatic syndrome for which the veteran had been in receipt of a 10 percent evaluation. The disabilities of defective hearing and residuals of a shell fragment wound of the left thigh were both evaluated as no percent disabling. An August 1967 VA medical record reflects that the veteran was seen for complaints of pain in and around the left hip and thigh which had become worse lately. He dated the onset of such complaints to a World War II mine explosion. Clinical evaluation was negative except for findings of hypalegesia of the left lateral femoral cutaneous area. The diagnostic assessment was probable mild neuralgic paresthesia of the left lateral femoral cutaneous nerve. In a March 1971 statement, D. I. Campbell King, M.D., reported that the veteran had osteoarthritis of both hips and knees. On a VA examination in May 1974, the veteran complained of pain in his low back area, with pain, burning and stiffness in his left hip, lateral thigh and down the left leg to the left ankle. He also complained of pain in the knees. He reported that he had been wearing a back corset for six months, and that he was taking medication for arthritis. X-rays of the lumbosacral spine and cervical spine revealed degenerative changes. X-rays of the hips revealed a slight narrowing of the hip joint spaces with small spurs. Physical examination revealed limitation of motion and muscle spasm in the low back area. There was slight limitation of motion of the hips. The diagnoses included osteoarthritis, multiple joint involvement, including the cervical and lumbar spine, both hips, and both knees, all relatively mild by X-ray. A statement from D. I. Campbell King, M.D., dated in January 1974 indicated that the veteran had degenerative joint disease of the lumbosacral spine, hips and sacroiliac joints. In May 1976, the veteran submitted a claim for service connection for a back disability. A copy of a medical certificate dated in April 1976 showed complaints of low back pain and pain in the left hip and leg since World War II. X-rays of the lumbosacral spine showed minimal to moderate spondylosis, and X-rays of the left hip were reported normal. In a rating action dated in August 1976, the regional office denied service connection for a low back disability. The veteran thereafter failed to submit a timely appeal to the rating action and a statement of the case. In June 1978, the veteran's private physician reported that the veteran's psychoneurosis was progressively restricting his life and ability to work. On a VA examination in August 1978, it was noted that the veteran had been working as a receiving clerk for the same firm since January 1951. He reported that he was missing 1 or 2 days every week from work because of vague fears and feelings of confusion and difficulty concentrating. The examination resulted in the diagnosis of anxiety neurosis, moderate to moderately severe. In a rating action dated in September 1978, the regional office raised the veteran's rating for anxiety neurosis to 50 percent, effective from May 17, 1978 and granted service connection for tinnitus, evaluated as 10 percent disabling. In a statement dated in October 1979, the president of the veteran's local union reported that the veteran was constantly under stress, that he panicked very easily, and that he was absent from work 2 or 3 days weekly. A statement by the veteran's private psychiatrist noted that the veteran's anxiety neurosis was becoming worse, and that the whole picture was that of weakening controls. It was further noted that the veteran had back pain, which was attributed to sleeping in foxholes and trenches during World War II. On a VA examination in July 1980, the veteran reported that he was very nervous, finding that he had an inability to tolerate horseplay at work or sudden or loud noises. He appeared tense and somewhat tremulous on examination. The diagnosis was anxiety neurosis, moderately severe. In June 1985, a private physician, Michael H. Young, M.D., reported that the veteran had blepharospasms which were associated with feelings of anxiety, and were secondary to the veteran's underlying psychiatric disorder. On a VA examination in October 1985, the veteran reported that he recently retired. He reported that he would spend a great deal of time by himself in his yard. He had few outside interests. The diagnosis was generalized anxiety disorder with associated blepharospasm. In a rating action dated in November 1985, the regional office continued the veteran's rating of 50 percent for the anxiety neurosis. In July 1991, a claim for an increased rating for anxiety neurosis was received from the veteran. A statement was received from a person who served with the veteran, dated in July 1991, concerning the circumstances surrounding the explosion of the mine which occurred in World War II. VA outpatient treatment reports were also received, showing that the veteran complained in January 1990 of nightmares, anxiety and restlessness. In May 1990 and February 1991, it was noted that his anxiety was stable, although he tried to avoid people and stress and complained of increased blepharospasms when under stress. In May 1991, he complained of low back pain secondary to degenerative joint disease. The veteran's wife reported in November 1991 that the veteran was taking medication for his nerves, but that the veteran had very little social interaction and no close friends. She reported that he was never happy, always jumpy, and never relaxed. The veteran's daughters reported in November 1991 that he obsessed over small things, and that he appeared troubled, nervous, confused and depressed. At a hearing at the regional office in March 1992, the veteran testified that he jumped and became especially nervous with sudden or loud noises. He stated that he had no friends, although he reported that he went to church and to the local Veterans of Foreign Wars of the United States. His daughters reported that the veteran seemed to have no real peace or enjoyment in his life, and that he always appeared worried, depressed and nervous. The veteran stated that the mine explosion caused him to be unconscious for about a week, and that his back and hip problems were associated with the explosion from the mine. VA outpatient reports for late 1991 and 1992 were received, as well as records for treatment from 1965. In April 1992, it was noted that the veteran continued to experience chronic anxiety in social situations, sleep disturbance and avoidant behavior. On a VA examination in August 1992, the veteran complained about dizziness, problems with balance and difficulty with his eyes. On examination, the examiner indicated that the veteran had vertigo secondary to peripheral ear disease. A general medical examination showed limitation of motion of the lumbar spine and right hip. The examination diagnoses included arthritis of the lower back, both hips, and both knees. On a social survey, the veteran and his daughters were interviewed. It was noted that the veteran had been employed for many years as a receiving clerk until he retired in 1984. According to the veteran, he was able to work until that time because he was able to work alone and was under no undue stress. He later attempted to work as a bus driver, but only lasted a short period of time. His daughters voiced different opinions concerning the reasons, but both believed that the veteran was unable to follow gainful employment. One daughter stated that the reason he was unable to follow gainful employment was because of his dizziness and staggering, while the other daughter stated that it was because of his stress. The daughters and the veteran mentioned that the veteran was startled by loud, sudden noises, experienced infrequent crying spells, and had bad dreams. The veteran reported that he attended his grandson's high school football games, Disabled American Veterans and The American Legion meetings, enjoyed watching television, and accompanied his wife to the local shopping mall. He also attended church regularly, although he would sit in the back. A report from the veteran's private physician for the period between March 1992 and October 1992 was received. It was noted that during this period of time the veteran showed some depression and anxiety, with facial grimacing, but that cognitive functioning was intact and that there were no abnormalities of speech or behavior. Experimentation with different levels of medication was reported, with some success by the end of October 1992. A report from a physician, dated in May 1993, indicated that the veteran was having problems with bruxism, and that the veteran had depressive episodes with a high level of anxiety. In a rating action dated in November 1992, the regional office assigned a 60 percent evaluation to peripheral ear disease with vertigo, hearing loss, and tinnitus, and continued the veteran's 50 percent evaluation for anxiety neurosis. A combined evaluation of 80 percent has been in effect since July 1, 1991, as the result of this rating determination. II. Analysis In order to reopen a claim for service connection, it is incumbent upon the applicant to submit new and material evidence which bears directly and substantially upon the specific matter under consideration and which is neither cumulative nor redundant. 38 C.F.R. § 3.156(a) (1993), Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence must be material, as it must be relevant and probative of the issue at hand. Additionally, to be considered new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Smith v. Derwinski, 1 Vet.App. 178 (1991). Entitlement to service connection for a back disability was denied by the regional office in a rating action dated in August 1976. The veteran submitted a timely notice of disagreement, and a statement of the case was then issued to him. The veteran then did not submit a timely substantive appeal. In reviewing the evidence before and after the rating decision of August 1976, the Board believes that the additional evidence referable to a back disorder submitted by the veteran since 1976 is not new and material. The evidence of record in 1976, included the service medical records and the reports of VA examinations conducted in 1946 and 1950, which did not manifest a chronic disability of the low back. While the veteran provided a history of back pain in 1976 which he dated back to service, such assertion of complaints was not, in fact, supported by contemporaneous medical records. The veteran's statements referable to complaints of back pain received since 1976, and the medical records relating to his back problem received since 1976, are cumulative in nature. The medical records since 1976 continue to show that he has arthritis in the low back area, but such findings were present in 1976. In addition, the veteran's current statements concerning the explosion of the mine are not supported by his previous statements or the contemporaneous medical records, as these records reflect that he was not unconscious for any lengthy period of time or treated for a back disability following the injury in March 1945. Finally, the veteran has not submitted medical evidence linking his current arthritis of the low back with the incident which occurred during service. Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Grottveit v. Brown, 5 Vet.App. 91 (1993). Accordingly, the Board finds that the veteran has not provided the necessary evidentiary requirements to reopen his claim for service connection for a back disability. 38 U.S.C.A. §§ 5108, 7105. In regard to the question of service connection for a disability of the hips, it is noted that the service medical records are completely negative for any complaints, findings or diagnoses indicative of a chronic disability of the hips during service. The reports of VA examinations in 1946 and 1950 are also negative for any complaints, findings, or diagnoses indicative of a chronic hip disability. The first manifestations of a hip disability occurred many years after discharge from service. There is no medical history or opinion which relates the findings of arthritis in the hips to the veteran's period of active duty. Again, causative factors of a disease process amount to a medical opinion; only a physician's opinion would be competent evidence. Grottveit v. Brown, supra. Thus, the present evidence of record fails to establish that a disability of the hips was incurred in or aggravated by service, or that arthritis of the hips is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§3.307, 3.309. In reaching the decision concerning an increased rating for anxiety neurosis, the Board has considered the complete history of the veteran's disability, as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. The Board finds that the disability picture relating to this condition is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the veteran's anxiety neurosis has caused marked interference with employment, or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321. A review of the VA outpatient treatment reports, the veteran's private medical reports, the report of the recent VA social survey, and the testimony at the recent hearing show that the veteran continues to have considerable problems relating to stress, including blepharospasms, anxiety, depression and some problems with obsessions. However, the outpatient treatment reports for 1990 and 1991 show some stability in mood and anxiety, and the report from the veteran's private physician in 1992 reveals that the veteran was having some success with a new combination of medication. The private physician noted that while he was somewhat depressed and anxious, cognitive functioning was grossly intact, and there were no abnormalities of speech or behavior. The evidence of record does not establish that the veteran's social relationships are severely impaired, as he is still able to interact with his family, go to church, and attend meetings of various social organizations. The evidence also fails to establish that his psychoneurotic symptoms are of such severity and persistence as to cause severe impairment in the ability to obtain or retain employment. The Board believes that the present evidence establishes no more than considerable social and industrial impairment as the result of his anxiety neurosis and that he does not meet the criteria for a higher evaluation. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Code 7806. The Board has reviewed the evidence of record on a historical basis concerning the veteran's adaptability for employment, considering the totality of his service-connected disabilities. In this regard, it is noted that he has been granted a 60 percent evaluation for peripheral ear disease with vertigo, hearing loss, and tinnitus, and a 50 percent evaluation for anxiety neurosis. The Board has noted that the veteran showed increasing problems on the job in the early 1980's, when he began having increasing anxiety and stress on the job. He began missing 2 or 3 days of work per week because of his psychological manifestations and problems. He has been retired since 1984. However, the mere fact that he is retired is not, by itself, a reason to deny the veteran's claim for unemployability. Rather, the Board must review the veteran's current symptoms in the context of the current stress that he faces, and the stress that he would face if he returned to an employment setting. In this regard, it is interesting to note that the veteran's daughters were both of the opinion that the veteran's symptoms from his service-connected disabilities made him totally unemployable, but that they expressed different opinions as to the cause for such unemployability, variously naming the veteran's vertigo and unsteadiness, or his anxiety. Since all of these symptoms are due to his service-connected disabilities, we must consider these symptoms, and the other symptoms which are manifested as the result of the service-connected disabilities, including the blepharospasms, and the veteran's need to avoid stress, noise, and unpleasant situations. It is further noted that the veteran's 60 percent evaluation for peripheral ear disease with vertigo, hearing loss and tinnitus has a large measure of subjective components, and is considered quite disabling. The Board believes that the veteran's service-connected disabilities do prevent him from obtaining and pursuing gainful employment. Consequently, he is entitled to a total compensation rating by reason of individual unemployability. 38 C.F.R. §§ 4.16, 3.340, 3.341. ORDER New and material evidence to reopen a claim for service connection for a back disability has not been submitted. Entitlement to service connection for a disability of the hips is not established. Entitlement to a rating in excess of 50 percent for anxiety neurosis is not established. Entitlement to a total compensation rating by reason of individual unemployability is established, subject to the controlling regulations for the award of monetary benefits. To this extent, the benefit sought on appeal is granted. JAMES R. ANTHONY 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.