Citation Nr: 0003777 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-30 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for low back strain. 2. Entitlement to an increased evaluation for residuals of a fractured nose. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from February 1971 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The RO denied service connection for low back strain in July 1991. The veteran was notified of this decision and of his appellate rights; he did not file an appeal. 2. Evidence of record at the time of the July 1991 decision consisted of the veteran's contentions and service medical records; a March 1978 VA orthopedic examination; and private medical records, dating from November 1976 through April 1991. 3. Evidence submitted subsequent to the July 1991 rating decision consists of a Social Security Administration decision in September 1993; VA outpatient treatment records, dated in June 1994 and March 1996; private medical records, dating from June 1997 to December 1997; the veteran's December 1997 hearing testimony; and a February 1998 VA disability evaluation examination report. 4. Evidence received since July 1991 is so significant that it must be considered to decide fairly the merits of the appellant's claim. 5. The veteran has presented no competent medical evidence of chronic low back strain in service and no competent medical evidence of a nexus, or connection, between any current low back disorder and any disease or injury in active military service. The claim is thus not plausible. 6. Residuals of a fractured nose comprise a minor right- sided nasal septum deviation, with subjective complaints of diminished senses of taste and smell. CONCLUSIONS OF LAW 1. The July 1991 rating decision denying service connection for low back strain is final. 38 U.S.C.A. § 7105 (West 1991). 2. Evidence submitted since the July 1991 decision is new and material, and the claim for service connection for low back strain is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for low back strain. 38 U.S.C.A. § 5107(a) (West 1991). 4. The schedular criteria for a compensable disability rating for residuals of a fractured nose have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 4.97, Diagnostic Code 6599-6502 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background It is the veteran's contention, in essence, that he sustained a back injury in service in 1973 in attempting to turn a large control wheel while assigned to duties in water management. He maintains that since that injury, he has had constant back pain which has caused him a significant amount of lost time from work and which now prevents him from working at all. He states also the fracture of his nose in a football game in 1972 has resulted in a stuffy nose and inability to taste or to smell. Service medical records disclose that the veteran had been given a diagnosis of paravertebral spasm in April 1973 for an injury to his low back which occurred while he was turning a steam valve. A separation examination in March 1974 noted strained lumbosacral muscles in April 1973, which had been treated with hospitalization, muscle relaxants, and bed rest. Service medical records also indicate that the veteran fractured his nose in November 1972 during a football game. Post service, in November 1976, the veteran was treated by a private physician, Owen M. McCarthy, M.D., for a subacute lumbar sprain due to a motor vehicle accident. In a March 1977 report, Dr. McCarthy wrote that he could find no objective evidence of low back pathology at that time. VA disability evaluation examination in March 1978 found no limitation of movement or bending and no tenderness of the veteran's lumbar spine. The diagnosis was history of back injury with no objective signs of residuals. Records dated in February and March 1982 from Thomas R. Sprenger, M.D., a private physician associated with Manatee Medical Center, reveal an industrial accident in which the veteran sustained a lifting injury, hurting his low back. Films of the lumbosacral spine from Manatee Hospital were negative. Following hospitalization, the veteran was essentially asymptomatic and discharged with a diagnosis of back sprain. In April 1987, the veteran was treated by another private physician, John D. Ferguson, M.D., for back pain following a game of softball. The impression was recurrent iliolumbar strain. Records dated in April 1991 from Manatee Medical Center Emergency Care indicate treatment for complaints of lower back discomfort after moving a television set. Examination of the lumbar spine showed no evidence of trauma, but did note mild paraspinal muscle spasm. An x-ray of the lumbar spine was negative. A letter from a private practitioner, also dated in April 1991, stated that the veteran was responding to manipulative therapy and muscle relaxants for a chronic back problem. A Social Security Administration decision in September 1993 determined that the veteran's back condition was not severe enough to keep him from working. VA outpatient treatment records in June 1994 included a reported history of back strain dating back 20 years to an injury initially incurred in 1973. An x-ray in 1993 had shown suspected mid-lower lumbar disc derangement. The diagnosis was lumbosacral strain. VA outpatient treatment records received in January 1997 disclosed treatment in 1996 for problems not in issue. In December 1997, records were received from Oxford Medical Clinics revealing that during the prior August, the veteran had sustained cervical, thoracic, and lumbar sprain and strain in a motor vehicle accident. An MRI from Magnetic Imaging Center of Manatee provided an impression of disc desiccation at multiple levels; small disc bulges at L2-3, L3-4, and L4-5, with questionable tiny focal protrusion at L3-4 in the left paracentral location; and annular tear in the L2-3 disc. An August 1997 report from a private chiropractor noted significant restrictions with extension of the lumbar spine. This individual noted that multiple abnormal findings in cervical spine, thoracic and lumbar spine were consistent with the veteran's history of traumatic onset. The veteran was given emergency care at Oxford Medical Clinics, Inc., a private facility in December 1997 when he apparently sustained another aggravation of his lumbar spine disability after lifting an aquarium. Examination showed tenderness along the lower lumbar spine and paravertebrally on the right. The final diagnosis was acute lumbar strain. He was treated by a chiropractor, Ron Latronica, D.C., who noted that he had a chronic low back condition from previous injuries and was unable to work at that time. Also in December 1997, the veteran testified at a hearing before a hearing officer at the RO. As residuals of a fractured nose, he claimed that he sneezed 8-10 times every morning upon awakening and that he was currently unable to smell anything or to taste food. He maintained that his nostrils were continually plugging up or draining and that, despite having been seen by a physician, there had been no improvement. He admitted under questioning, however, that he had never been given a diagnosis of allergy nor had he been told he had a deviated septum, and that the last medical evaluation of his nose had been at the time of the injury during active military service. Concerning his lumbar spine, he reported an injury in 1973 during service when attempting to turn a water valve, with subsequent hospitalization for three days. He said also that he had been involved in a motor vehicle accident after service in 1976. Currently, he maintained, every motion of his back was painful, pain radiated down his left leg, and his back problems had made it impossible for him to work. A VA nose and throat examination report in February 1998 noted a history of a fracture of the nasal dorsum during a football game during service. The veteran denied any hospitalization or surgical reduction of his nasal fracture and denied major epistaxis. He had not experienced subjective alteration of nasal breathing or post-traumatic loss of smell and perception of decreased taste. Physical examination revealed minor limitation of nasal meatus secondary to deviation of right nasal septum. Although there was no evidence of chronic sinus disease, the veteran did complain of occasional nasal congestion and postnasal drip. He stated that he had not had allergy attacks and had no known allergies. Physical examination revealed the nasal septum essentially in midline with minor deviation on the right side. There were no polyps, lesions, or visible discharge and no current evidence of sinus disease. The diagnosis was nasal septum deviation, with only minor limitation of nasal patency in the right side; and subjective minor hyposmia and hypogeusia (diminished taste) after nasal fracture in service without progression since trauma (not clinically tested). An addendum written in April 1998 by this examiner stated that the veteran's hyposmia and hypogeusia were not of sufficient severity to merit gustometric and olfactometric examinations. A VA orthopedic examination report in February 1998 noted the veteran's statements that he had not worked for five or six years because of his back problem. He stated that his only medication at present was a muscle relaxant, taken as needed. He complained that his pain was constant, with frequent flare-ups and that he had to wear a back brace and sometimes use a cane. Physical examination revealed a well-muscled individual in no acute distress except during evaluation of his back. There was no fixed deformity, but he did have slight increased lumbar lordosis. He had no significant palpable muscle spasm. The impression was lumbosacral strain, lower lumbar disc derangement; apophyseal degenerative joint disease; and lower lumbar spinal stenosis. At this time, the examiner opined that since symptoms had reportedly persisted ever since the original injury and had become worse after the post-service automobile accident, it was as likely as not that the injury had its onset with the service connected injury and been aggravated by the post service auto accident. In a March 1998 addendum, however, after additional review of the claims file, the examiner revised his opinion, stating that he had traced lumbar spine injuries occurring in 1976, 1982, and 1991, all subsequent to the injury in service. An x-ray in 1991 was reported as normal. It was not until August 1997, he pointed out, that an MRI had begun to show some evidence of degenerative disc disease. A spinal x-ray taken in February 1998 showed hypertrophic spurs of L-4 and L-5 and degenerative changes of the popliteal joints between L-4 and L5; and degenerative changes of popliteal joints between L-4 and S-1. There was also a suggestion of spinal stenosis at L-4 and L-5 His revised diagnostic impression was lower lumbar disc derangement; popliteal degenerative joint disease. He now stated that he thought it unlikely that the veteran's current degenerative disc disease was related to the 1972 [sic] lumbar strain in service. II. Legal Analysis A. New and Material Evidence for Service Connection for Low Back Strain The veteran filed his original claim for low back and nose injuries in February 1975. In May 1975, the RO granted service connection for residuals of a fracture of the nose at a noncompensable evaluation and denied the claim for low back strain, noting that the veteran had not reported for a scheduled VA medical examination. In April 1978, following VA disability evaluation examination, the RO again denied service connection for low back strain. The veteran did not appeal. In May 1991, the veteran re-filed the claim with the submission of new evidence, but the RO again denied it in July 1991. The veteran received notice of the denial and of his appellate rights that same month, but did not appeal and the decision became final. Although scheduled to appear at a hearing in November 1999 before the Board of Veterans Appeals in Washington, D.C, he failed to report. A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the claimant is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority. Id. A claimant has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if no NOD is filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d), 20.302(a) (1999). Under governing law and regulations, a claim previously and finally disallowed by the RO may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156 (1999). New and material evidence means evidence not previously submitted to agency decision-makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative 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). On a claim to reopen, a three-step analysis must be conducted under section 5108. Winters v. West, 12 Vet. App. 203, 205- 207 (1999) (en banc). The first step involves a determination as to whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the Board must then reopen the claim and determine "whether the claim, as then reopened, is well grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence." Elkins v. West, 12 Vet. App. 209, 218-219 (1999) (en banc); see also Winters, 12 Vet. App. at 106. If the claim is not well grounded, that is the end of the matter. Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). If the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id, quoting Winters, supra; Elkins, supra. Following reopening, the ultimate credibility or weight to be accorded such evidence must be determined as a question of fact. Kightly v. Brown, 6 Vet. App. 200, 205 (1994). Evidence considered by the RO in its July 1991 denial included the veteran's service medical records; a VA orthopedic examination, dated in March 1978; private records from Owen M. McCarthy, M.D., dated in November and December 1976 and received in April 1988; private treatment records from Thomas R. Sprenger, M.D., dated in February and March 1982 and received in April 1988; an April 1987 outpatient examination record from a private physician, John D. Ferguson, M.D., received in May 1988; and records from Manatee Medical Center Emergency Care and a letter from an associated private practitioner, all dated in April 1991 and received in June 1991. The veteran's DD 214 was also of record, showing his period of service and discharge. Having reviewed all of these records as summarized above, the RO denied reopening the veteran's claim. Previously, the RO had repeatedly stated that the veteran's claim had originally been denied in 1978 because post-service VA examination had shown no evidence of residuals of a back injury. It issued a confirmed denial in July 1991, pointing out that records of treatment in 1991 did not constitute new and material evidence since they did not establish a relationship to service. Evidence submitted since the July 1991 RO decision consists of a Social Security Administration decision in September 1993; VA outpatient treatment records, dated in June 1994; VA outpatient treatment records, dated in March 1996; records received in December 1997 from Oxford Medical Clinics pertaining to an August 1997 automobile accident; a record of emergency care at a private facility in December 1997; the veteran's December 1997 hearing testimony; a February 1998 VA nose and throat examination report, with an April 1998 addendum; and a February 1998 VA orthopedic examination report, with a March 1998 addendum. Additionally, a number of duplicate copies of service medical and other records were submitted, although not listed above. The Board finds that all of the listed, recently-submitted evidence is new as it had not been previously submitted, and, hence, is not redundant or cumulative of evidence previously of record. With the exception of the 1996 VA outpatient records, which indicate treatment for substance abuse, and the portion of the February 1998 VA examination pertaining to the nose and throat examination, all of the evidence is relevant and material, as it bears directly and substantially on the merits of the claim. Especially significant is the 1988 VA orthopedic examination with addendum, which provides evidence so significant that it must be considered in order to fairly decide those merits. Accordingly, the claim for service connection for low back strain is reopened. B. Service Connection for Low Back Strain Since new and material evidence has been submitted, the Board must next determine whether the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Elkins v. West, at 218- 219. Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). To be well grounded, a claim must be "plausible;" that is, it must be one which is meritorious on its own or capable of substantiation. Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition in Epps v. Brown, 9 Vet. App. 341, 344 (1996). A claim which is not well grounded precludes the Board from reaching the merits of a claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). To establish that a claim for service connection is well grounded, a veteran must present medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence, of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus or link between the claimed in-service disease or injury and the present disease or injury. Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1999). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The chronicity provision applies where there is competent medical or lay evidence, regardless of its date, which shows that a veteran had a chronic condition in service or during an applicable presumption period and still has that condition. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Id. Following review of the evidence, the Board finds that this claim is not well grounded. The veteran has a low back disorder, currently diagnosed as lower lumbar disc derangement; popliteal degenerative joint disease. He thus meets the first prong of the well-grounded requirements. He also had lumbosacral strain during service, which meets the requirement of a low back condition observed during service. On the other hand, since that low back condition was not found to be chronic during service or during any applicable presumption period, and because no competent medical evidence relates the symptomatology in service to the present symptomatology, his claim may not be considered well grounded under the 38 C.F.R. § 3.303(b) criteria. Essentially, what is missing here is the nexus criterion. No medical practitioner in the approximately 23 years since the veteran's discharge from service has provided competent medical evidence of a nexus or link between the claimed in- service injury and the present degenerative joint and disc disease. On the contrary, after careful study of the claims file and thorough orthopedic examination of the veteran, the VA examiner in March 1998 concluded that he believed it unlikely that the veteran's current degenerative disc disease was related to the lumbar strain in service. As rationale for his opinion, he emphasized that the x-rays taken in 1991 were negative and that it was not until August 1997 that radiographic evidence of degenerative joint and disc disease was found. Accordingly, the claim for service connection for low back strain is not well grounded and must be denied. C. A Compensable Rating for Residuals of a Fractured Nose The veteran has presented a well-grounded claim for an higher disability evaluation for residuals of a fractured nose within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the prior rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant's treatment records have been associated with the file, and he has been accorded an appropriate examination. The Board is satisfied that all relevant and available facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are administered under the Schedule for Rating Disabilities, which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; Dinsay v. Brown, 9 Vet. App. 79, 85 (1996). The veteran has been evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6502, pertaining to traumatic deviation of the nasal septum. This code contains only one percentage: a 10 percent evaluation is warranted with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. Although service medical records indicate that the veteran fractured his nose in November 1972 during a football game, there is no evidence of complaints of or treatment for any problems in relation to the veteran's nose until his RO hearing in December 1997. VA examination in February 1998 found only a minor deviation of the right nasal septum and some complaints of occasional nasal congestion and postnasal drip. There were no other abnormalities found. Therefore, because the veteran's deviated septum does not show unilateral complete obstruction or bilateral 50 percent obstruction of the nasal passage, a compensable evaluation is not warranted under Diagnostic Code 6502. The Board has also considered an evaluation under 38 C.F.R. § 4.87a, Diagnostic Codes 6275 and 6276, which provide, respectively, that a 10 percent evaluation is warranted for complete loss of sense of smell and a 10 percent evaluation for complete loss of taste. As to complaints of hyposmia and hypogeusia, the veteran's hearing testimony and the VA examination are discrepant as to the severity of such disorder. At his hearing, he stated that he was unable to smell or taste anything, but during examination, he appears to have denied these symptoms initially, but then to have mentioned minor symptoms. The examiner determined that these complaints were subjective and the symptoms of mild degree and not sufficient to warrant specialized examination. There is no evidence that the veteran has a complete loss of smell or taste. His very minor symptoms thus do not warrant an allowance under one or both of these codes. Accordingly, the Board finds that a preponderance of the evidence is against a compensable evaluation for residuals of a fractured nose. The claim is denied. Since there is no approximate balance of positive and negative evidence with respect to this issue, the Board finds that the doctrine of benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b). ORDER Since new and material evidence has been presented or secured to reopen a claim for service connection for low back strain, the claim is reopened. Service connection for low back strain is denied. A compensable evaluation for residuals of a fractured nose is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals