BVA9502497 DOCKET NO. 93-10 817 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for loss of balance. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for sinusitis, a psychiatric disorder and a back disorder. 3. Entitlement to an increased (compensable) evaluation for service-connected tear of muscles, left anterior thigh. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from November 1943 to February 1946. The Board of Veterans' Appeals (the Board) denied entitlement to service connection for sinusitis in December 1950. The Board again denied service connection for sinusitis as well as a psychiatric (nervous) disorder and a back disorder in August 1967. The veteran sought to reopen his claim in that regard in 1991. This appeal is taken from rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, in December 1991. On several occasions, personal hearings were scheduled at the RO; each time, the hearings were postponed by the veteran, and most recently, in April 1993, he neither postponed nor appeared for the scheduled hearing. The case was certified to the Board. CONTENTIONS OF APPELLANT ON APPEAL In essence, it is maintained by and on behalf of the appellant that he developed a sinus disorder, an acquired psychiatric disability, and vertigo/loss of balance in service. It is contanced that he developed a back disorder as a result of his service-connected left thigh disability. Finally, it is averred that his left thigh disability has increased in severity, and that a higher rating is in order. 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 veteran's claim for service connection for loss of balance is not well grounded; that new and material evidence has not been submitted to reopen the claim for entitlement to service connection for sinusitis, a psychiatric disorder or a back disorder; and that the preponderance of the evidence is against his claim for increased (compensable) rating for his service- connected tear, muscles, anterior left thigh. FINDINGS OF FACT 1. In 1950, the Board denied service connection for a sinusitis disorder. 2. Evidence submitted since the 1950 Board decision does not establish that a sinusitis disorder is a result of service or service-connected disability. 3. In 1967, the Board denied service connection for a psychiatric (nervous) disorder and a back disorder. 2. Evidence submitted since the 1967 Board decision does not establish that the veteran had a psychiatric disorder or a back disorder in or as a result of service or secondary to service- connected disability. 3. There is no evidence or medical opinion that the veteran has loss of balance which is the result of service or service- connected disability. 4. The residuals of partial tear of the muscles of the anterior thigh have not changed in many years; they cause no functional impairment of knee or hip, and are generally no more than slight; they do not present an unusual disability picture and do not cause marked interference with employment or require frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The decision of the Board in 1950 denying service connection for a sinusitis disorder, is final; evidence submitted since then is not new and material, and the veteran's claim for service connection in that regard has not been reopened. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991); 38 C.F.R. §§ 3.l56, 20.1105 (1993). 2. The decision of the Board in 1967 denying service connection for a psychiatric (nervous) disorder and a back disorder, is final; evidence submitted since then is not new and material, and the veteran's claim for service connection in that regard has not been reopened. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991); 38 C.F.R. §§ 3.l56, 20.1105 (1993). 3. The veteran's claim for service connection for loss of balance is not well-grounded. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 1991). 4. An increased (compensable) evaluation for tear, left anterior thigh muscles, is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5314 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is satisfied that, in pertinent part, the VA's obligation to assist the veteran in the development of the evidence has been met, and that the evidence now in the file is an adequate basis upon which to reach an equitable disposition of the claims herein under consideration. 38 U.S.C.A. § 5107(a). Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is the result of service-connected disease or injury. 38 C.F.R. § 3.310. Sinusitis, Psychiatric and Back Disorders The Board denied the veteran's claim for service connection for a sinusitis disorder in 1950, and the decision became final. Although that decision was subsequently confirmed by the Board in 1967, the United States Court of Veterans Appeals (the Court), has stated that for the purposes of reopening, the Board must consider the new and material evidence submitted since 1950. See Glynn v. Brown, 6 Vet.App. 523 (1994). In 1967, the Board also denied the veteran's claim for service connection for a psychiatric disorder and a back disorder. That 1967 decision also became final. To reopen a claim following a final decision, the veteran must submit new and material evidence. 38 U.S.C.A. § 5108. When a veteran seeks to reopen his or her claim under [38 U.S.C.A.] § 5108, the BVA must first conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous BVA decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Goodwin v. Derwinski, 1 Vet.App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). In undertaking this "two-step" analysis, the Board must compare the evidence considered at the time of the prior denial of service connection with the evidence submitted since that time. Evidence Previously Considered The evidence of record at the time of the 1950 decision relating to sinusitis included the veteran's service medical records which showed no signs of sinusitis. Service records show care for other respiratory complaints without findings of sinus abnormalities. Sinusitis was first demonstrated on X-rays and in clinical findings in May 1946, several months after service. VA hospitalization for sinus problems occurred in May and December 1949. The Board concluded that the record failed to demonstrate the existence of sinusitis in service. Similarly, the evidence in the file and considered by the Board in 1967 relating to a psychiatric disorder included service records which showed no evidence of any such disorder, and post- service VA and private clinical findings which showed no diagnosed nervousness until 1965, many years after service. While the record included statements of the veteran concerning his disorder, the Board concluded, in 1967, that service connection for a nervous disorder was not warranted. Regarding a back disorder, when considered by the Board in 1967, of record were the veteran's service medical records which showed no evidence of a back problem. Also of record were post-service clinical documents, including VA examinations soon after service, lay affidavits and private physician's reports all of which demonstrated back problems starting in about 1962, and recurring in 1965, when the diagnoses included low back pain with radicular irritation and degenerative disc disease, L-4/L-5 level. A private physician specifically opined that the veteran's back problems in 1966 were independent of his service-connected thigh disability. On that basis the Board, in 1967, denied service connection for a back disorder. Evidence Submitted Since Prior Board Decisions In 1991, the veteran attempted to reopen his claim with regard to these three disorders. To successfully reopen a claim, there must be new and material evidence submitted. New and material evidence means evidence not previously submitted which bears directly and substantially upon a 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. 38 C.F.R. § 3.156(a). In general, the United States Court of Veterans Appeals has stated that the evidence must be relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable probability that the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). Regarding the sinus disability, evidence received since the 1950 Board decision includes a VA clinical report from December 1949 to January 1950 showing treatment of the veteran for sinus complaints; this document was considered at the time of the 1950 Board decision. Concerning the back disorder, since the Board decision in 1967, evidence has been submitted relating to back complaints since the 1960's, including VA clinical records from 1962 showing myositis of the back without radiation of pain into the lower extremities. The veteran complained in 1966 of occasional radiation of the lumbar pain into the left lower extremity. Although the physician noted that the veteran had a history of injury to the left thigh muscles, there was no opinion expressed that the service-connected muscle tear had precipitated organic back disorder. Fibromyositis of the lumbar spine was diagnosed as well as left quadriceps disability. Also added were reports of evaluations in the late 1970's for back complaints. None of the evidence or medical opinion established any relationship between his service-connected leg disability and his back. One report from 1979 noted that there was no gross leg length discrepancy. Evidence submitted since the 1967 Board decision concerning nervousness included one clinical report in 1952 that the veteran was seen for a psychiatric evaluation and what was described as neurasthenia. In 1953, he was said to have problems controlling himself. Since the prior Board decisions, VA and private clinical records since the late 1970's show that the veteran was also seen for unrelated cardiovascular complaints with a history of an unidentified neuropsychiatric condition and complaints of general nervousness. In 1988, he was seen for heart and prostate problems. Specific sinus, back and psychiatric problems and diagnoses were not recorded. The Board finds that the evidence submitted since the Board decision in 1950 regarding a sinusitis disorder, and the Board decision in 1967 regarding back and nervous disorders, is neither new nor material. Having reviewed the recently submitted evidence, it is concluded that, for the most part (with the exception of the previously considered medical records), the evidence is new, inasmuch as it is not cumulative of evidence considered in the 1950 and 1967 Board decisions. However, it is not material to the appellant's claim, as it is not relevant and probative of the issue at hand; that is, whether the veteran developed sinusitis, a back disorder, or an acquired psychiatric disorder as a result of military service. Evidence contemporaneous with the veteran's period of service would be of more probative value. Medical evidence which merely establishes the existence of a claimed disability at a time closer to active service than previously shown is not, in itself, new if there is not shown some 'connection' to military service. White v. Brown, 6 Vet. App. 247 (1994). The additional evidence contains no confirmatory or objective proof that the veteran developed sinusitis, a back disorder, or an acquired psychiatric disorder as a result of service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. To conclude, in the absence of new and material evidence, this claim may not be reopened. Loss of Balance In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (l992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). In regard his recent claim for service connection for "loss of balance", the veteran's service medical records show no evidence of findings of balance problems. There were no clinical findings or diagnosis on VA and private examinations in 1946, or on treatment records from the 1950's and 1960's, relating to loss of balance. In March 1947, the had veteran reported that after he was injured in service, his knee condition caused him to have a sense of lack of balance when moving in haste or when turning around. While being treated since the late 1970's for symptoms related to arteriosclerosis, the veteran has had complaints of some associated dizziness and headaches. Although it is not quite clear what the veteran currently means by "loss of balance", there is no objective evidentiary basis provided for establishing that a disorder precipitating such complaints was present in or is otherwise the result of service or service- connected disability, nor has there been evidence or medical opinion submitted to that effect. In Rabideau v. Brown, 2 Vet.App. 141 (1992), the Court held that in the absence of evidence of a current disability which could be attributed to service, the veteran had not submitted evidence "probative of the issue at hand". For the reasons noted above, the claim is not well-grounded. Increased Evaluation In questions relating to claimed entitlement to increased compensation benefits, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). However, although the veteran has not undergone a recent VA examination with regard to his service-connected disability, based on the overall evidence of record, the Board is satisfied that adequate evidence is of record to reach an equitable disposition of the issue relating to an increased evaluation. In general, disability evaluations are determined by the application of a schedule of earnings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). The Board has also considered all of the facets of the disorders including alternative provisions which may be applicable pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran's separation examination noted that he had a tear of muscles of the left thigh, anterior part, although a contemporaneous description of the circumstances relating thereto is not of record. On VA examination in 1950, the veteran walked with a slight limp of the right leg and a tendency towards a varus deformity of the foot (unrelated to the claimed injury). There was no leg shortening. He had a depression at the middle third of the thigh over the rectus femoris muscles. This became accentuated by voluntary extension of the knee. All motions of the knee were normal and the knee was stable. All muscle groups were normal except for slight weakness of the rectus femoris group (Muscle Group XIV). The diagnosis was partial tear, fibers of the left rectus femoris muscle. The veteran's rating for his service-connected tear, left anterior thigh muscle, has been at zero percent since separation from service. Clinical records from the 1970's and 1980's show no treatment for or complaints relating to any left anterior thigh muscle disability. When he recently filed a claim for increased compensation, the veteran reported that his only care had been at the VA. However, VA treatment records show no reference to his left lower extremity except in relationship to radiation from his back problems. The VA Schedule for Rating Disabilities provides that in evaluating injury to Muscle Group XIV, the anterior thigh group, whose function includes extension of the knee, simultaneous flexion of knee and hip, postural support of the body, etc., a zero percent rating is assignable when slight; a 10 percent rating is assignable when moderate; a 30 percent rating is assignable when moderately severe; and a 40 percent rating is assignable when severe. 38 C.F.R. Part 4, Code 5314. No other provisions appear to be equally suitable for evaluating his residual impairment. The veteran had not identified any indication reflective of evidence that his left leg muscle disability has had any recent, or for that matter, significant post-service deterioration. In this case, there is no current objective evidence that the veteran's residuals of partial tear of the anterior thigh muscles produce any limitation of left hip or thigh motion, or that his knee is not stable as a result; his overall functional impairment is minimal, and remains no more than slight in degree. An evaluation in excess of zero percent is not warranted. The application of 38 C.F.R. § 4.7 does not result in a higher evaluation. Neither does the service-connected disability cause marked interference with employment or is unusual with such related factors as required for an extraschedular compensation evaluation pursuant to 38 C.F.R. § 3.321(b)(1). ORDER The veteran's claim for service connection for loss of balance is not well grounded, and in that regard, the case is dismissed. New and material evidence not having been received, the veteran's claim for service connection for sinusitis, a psychiatric disorder and a back disorder is not reopened; in that regard, the case is dismissed. An increased (compensable) evaluation for service-connected residuals of tear, muscles of the left anterior thigh, is denied. RENÉE M. PELLETIER 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.