Citation Nr: 0001656 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-06 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a head injury. 3. Entitlement to an increased evaluation for residuals of a nose fracture, currently evaluated as 10 percent disabling. 4. Entitlement to an effective date prior to December 23, 1994 for the assignment of a ten percent disability evaluation for residuals of a nose fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). In January 1996, the veteran submitted timely substantive appeal of each of the issues addressed in that June 1995 decision. By a September 1998 rating decision, the RO confirmed the June 1995 decision that the veteran had not submitted new and material evidence to reopen a claim for service connection for a head injury. In October 1998, the RO confirmed the previous denial of service connection for PTSD. The Board notes the argument of the veteran's representative, in the October 1999 informal hearing presentation, that the veteran has raised a claim for service connection for headaches, based on his repeated statements that he has suffered headaches since service as a result of a head injury incurred in service. The Board does not agree that a claim for service connection for a head injury, manifested by headaches, necessarily raises separate claims for service connection for a head injury and for headaches. However, the veteran may certainly raise a separate claim for service connection for headaches, and the representative's statement is REFERRED to the RO. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. There is no competent medical evidence of a diagnosis of PTSD. 3. By an unappealed decision dated February 1977, the RO denied the veteran's claim of entitlement to service connection for residuals of a head injury. 4. The evidence associated with the claims file subsequent to the February 1977 decision does not bear directly and substantially upon the specific matter under consideration and need not be considered to decide fairly the merits of the claim. 5. The veteran's residuals of a nose fracture are productive of partial obstruction of the nasal passages. 6. Effective from September 1970, service connection for residuals of a nose fracture was established and a noncompensable evaluation was assigned, and the veteran did not timely appeal this decision. 7. The veteran's claim for an increased compensation for residuals of a nose fracture was received by the RO on December 23, 1994. 8. The earliest date as of which it is factually ascertainable that the veteran's residuals of a nose fracture had increased in severity so as to meet the criteria for a 10 percent evaluation is February 1995. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The RO's February 1977 decision denying entitlement to service connection for residuals of a head injury is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 3. The evidence received since the February 1977 rating decision is not new and material, and the requirements to reopen the veteran's claim of entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 4. The criteria for an evaluation in excess of 10 percent for residuals of a nose fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6502 (1999). 5. The requirements for an effective date prior to December 23, 1994, for the assignment of a 10 percent disability evaluation for residuals of a nose fracture have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110, 7105 (West 1991); 38 C.F.R. §§ 3.400, 4.97, Diagnostic Code 6502 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he incurred PTSD while he was serving in Korea, and has suffered from that psychiatric disorder continuously since then. The veteran also contends that he has submitted sufficient evidence to establish that he incurred a head injury in service. The veteran contends that disability due to a nasal obstruction is more disabling than the current 10 percent evaluation reflects, and further contends that he is entitled to an increased evaluation for nasal obstruction retroactive to 1970. 1. Claim for Service Connection for PTSD The veteran contends that he suffers from PTSD due to incidents such as having friends killed in Vietnam, serving along the demilitarization zone in Korea, and being personally assaulted by a fellow soldier. However, the Board must first determine whether the veteran has presented a well-grounded claim for service connection. As an initial matter, the Board notes that the veteran submitted a previous claim for service connection for PTSD in October 1989, and that claim was denied by a rating decision issued in July 1990. As the regulations pertaining to PTSD, and, in particular, 38 C.F.R. § 3.304(f) (1999) have been revised since the 1990 rating decision, the Board will treat the veteran's claim as an original claim rather than a request to reopen a previously-denied claim. However, as the following discussion makes clear, the veteran's current claim cannot be granted under either analysis, as he has not established a well-grounded claim. A well-grounded service connection claim for PTSD consists of medical evidence of a current PTSD disability, lay evidence (presumed to be credible for these purposes) of an in-service stressor, and medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The veteran's service medical records contain no findings, diagnosis, or treatment related to a psychiatric disorder. VA outpatient records show that the veteran presented in January 1990 with complaints of PTSD. The veteran was assessed as having a severe adjustment problem and he was referred for a mental health consultation. That consultation was performed in March 1990 and the veteran was diagnosed with alcohol dependency. The veteran was afforded VA psychiatric examinations in May 1990, February 1995, and May 1996. The examiner who conducted the 1990 examination noted that the evidence did not support a diagnosis of PTSD, while the examiner who conducted the 1995 and 1996 examinations concluded that the veteran had "no psychiatric symptoms," and assigned diagnoses of alcohol dependence, substance abuse by history, and personality disorder, unspecified. VA outpatient records show that the veteran received occasional treatment for alcohol dependence, but are devoid of any medical evidence of diagnosis or treatment of PTSD, although those records do reflect that the veteran asked for treatment for PTSD. The only evidence of record which supports the veteran's claim that he has PTSD is the veteran's statement, reiterated multiple times, that he has been suffering from PTSD which began during his service in Korea. Additionally, the veteran has stated that he experienced personal assaults which resulted in PTSD. However, as the veteran has been informed by the RO, the veteran's own lay statements that he has incurred PTSD do not establish a well-grounded claim, in the absence of competent medical diagnosis of PTSD, since the record does not reflect that the veteran possesses the medical training and expertise necessary to render a medical diagnosis. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Based upon the aforementioned findings, the Board concludes that the record does not contain any medical evidence of a current PTSD disability. In the absence of medical evidence that shows that the veteran currently has PTSD, his claim for service connection is not well grounded and must be denied. The Board is not aware of any relevant evidence that may exist or could be obtained, which, if true, would make the veteran's claim well grounded. McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board does, however, view its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim and to explain why his current attempt fails; the Board notes, as referenced above, that the RO informed the veteran as well. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). II. Request to Reopen Claim for Service Connection for Residuals of Head Injury The veteran's claim of entitlement to service connection for residuals of a head injury was previously considered and denied by the RO in a February 1977 rating decision. The veteran did not disagree with or appeal that decision. The RO issued a denial of a request to reopen that claim, in June 1995, finding that the veteran had not presented new and material evidence to warrant a grant of service connection. The veteran submitted further statements indicating that he sustained head trauma as the result of personal assault, including the assault in which he sustained a fracture of the nose. New and material evidence means evidence previously not submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in conjunction with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This standard represents a liberalization of the definition of material evidence and permits a finding of materiality even where the evidence would not establish a well-grounded claim. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The relevant evidence that was of record at the time of the RO's February 1977 denial included the veteran's service medical records. Evidence received since that time includes VA examinations dated from September 1981 to May 1996, records of private outpatient treatment beginning in 1984 and private hospitalizations in 1985 and in 1988, VA outpatient treatment records, an August 1993 private hospital report, June 1985 and December 1994 private medical statements, March 1995 lay statements, a June 1997 statement from the veteran, and September 1998 lay statements. The service medical records show that the veteran incurred a laceration of the forehead in July 1968. The wound was sutured, and after removal of the sutures a few days later, the veteran received no further medical care. The x-ray findings at the time were negative. The veteran also sustained a fractured nose in August 1970. The separation examination contains no complaint, findings, or diagnosis related to a head injury. VA outpatient records prior to January 1995, private inpatient and outpatient clinical records from 1984 to 1988, and private medical statements dated in June 1985 and in November 1993 reflect that the veteran sustained injury to the right hand, to the back, and to the shoulders, but these records are devoid of any complaint of, diagnosis of, or report of a head injury alleged to have been sustained in service. An EEG performed at Porter Memorial Hospital in August 1993, due to a diagnosis of headaches, was normal. A VA outpatient record from January 1995 indicated that the veteran complained of neck and back pain and diffuse headaches; however the veteran related these symptoms to a fall from a chair the previous month. He stated that he had struck his head on a wall and had severe pain of the left anterior temporal parietal area. A VA CT scan of the head in February 1995 showed two areas of low attenuation without enhancement in the right and left frontal white matter tracts. The impression was that these areas might represent chronic ischemic change or demyelinating disease. The veteran's friend and wife submitted statements in March 1995 in which they claimed that the veteran's headaches were due to being injured with a pool stick while in service. They believed that he suffered from mood swings and the inability to get along with others due to the head injury. During the VA neurological examination of April 1995, the veteran related a history of headaches for the past 20 years as a result of being hit on the front of the head by a blunt object, followed by bleeding and a loss of consciousness. The headaches occurred two to three times per month and prohibited him from performing routine activities. The physical examination was largely within normal limits and the veteran was assessed with vascular headaches, which "may be" migraines, and also could be musculoskeletal. During a May 1996 VA examination, the veteran referred to a history of migraine headaches and head trauma. He stated that he had sustained a head injury and was knocked unconscious when he was assaulted in service. The headaches had increased in severity over the years but were alleviated by the use of medication. The physical examination made no objective findings and the veteran was assessed with migrainous headaches, muscle contraction headaches, and post- traumatic headaches. The veteran submitted a letter in June 1997 in which he stated that he was hit over the head with a pool stick and rendered unconscious while in service. Since that time, he has suffered from residuals of the attack. Statements submitted in September 1998 from the veteran's son, daughters, mother, and brother claimed that the veteran had suffered for many years with severe headaches. They believed that these headaches were the result of a head injury due to being hit with a pool stick. In summary, the Board finds that the evidence presented subsequent to the RO's February 1977 denial does not bear substantially and materially upon the specific matter under consideration, that is, whether residuals of a head injury were incurred in or caused by active service. While the veteran has submitted clinical evidence related to many outpatient treatment visits and several inpatient hospitalizations, this evidence, prior to 1995, is completely devoid of any complaint of head injury in service or reported history or complaints of headaches. While the veteran did report, at the time of an April 1995 VA examination, that he had experienced headaches continuously for the past 20 years, residual to a head injury incurred in service, the examiner did not assign a diagnosis of head injury residuals or possible head injury residuals. Rather the examiner concluded that the veteran had vascular headaches, possibly migraine headaches, as well as tension headaches. The Board concludes that this evidence is essentially cumulative and redundant, since the veteran asserted in 1977 that he had constant headaches as a residual of a head injury incurred in service. His additional statements to this effect, as well as the lay statements of his family members and others, reiterating that the veteran currently suffers from headaches and that they believe that these headaches are the result of a head injury incurred in service, are cumulative of the lay evidence of record in 1977. This cumulative and redundant evidence need not be considered in order to fairly decide the merits of the claim. The medical evidence continues to assess the veteran with a variety of headaches, but is devoid of medical evidence or opinion suggesting that the veteran has current residuals of a head injury. In the absence of medical evidence that the veteran currently has residuals of any head injury, the medical evidence also fails to support the veteran's contention that he sustained a head injury in service. The Board has considered the argument of the veteran's representative that a July 1968 treatment record which reflects that the veteran sustained a laceration of the forehead is new and material to reopen the claim, because the rating decision in February 1977 did not specifically discuss that treatment record. However, the Board notes that the 1968 treatment record, which shows that one suture was placed in a laceration on the veteran's forehead, with no assigned diagnosis other than "laceration, forehead" is not inconsistent with the RO's determination that the service medical records establish that the veteran did not incur a head injury, other than a nasal fracture in 1970, in service. In particular, the RO noted that the separation examination failed to disclose any residuals of a head injury (other than nasal fracture). The Board does not find that the July 1968 record, which was associated with the claims file at the time of the prior decision, is "new" evidence which warrants reopening the claim. The Board observes that the record is completely devoid of any medical substantiation that the veteran sustained a head injury while on active duty. Moreover, the Board further notes that, even if the Board were to accept the veteran's allegations of being knocked unconscious by a pool stick, the veteran has failed to present any competent medical evidence of a nexus or relationship between that incident of active service and his current claimed disability. Thus, even if the Board were to find that the veteran had submitted new and material evidence to reopen his claim, the veteran has failed to establish a well-grounded claim, in the absence of any competent medical evidence or opinion that he has a current disability residual to a head injury incurred in service. Accordingly, the benefit sought on appeal must be denied. III. Claim for Increased Evaluation for Residuals of Nose Fracture An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased evaluation is well grounded. Once a veteran has presented a well-grounded claim, the VA has a duty to assist him in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. Therefore, no further assistance to the veteran with the development of the evidence is required. Disability ratings are determined by evaluating the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The record shows that the RO granted service connection for residuals of a nose fracture in May 1975 and assigned a noncompensable evaluation effective from September 1970. The rating assigned to this disability was increased to 10 percent effective from December 1994. During a VA examination in February 1995, the veteran stated that either one or both of his nostrils had been blocked up since service. He was assessed with nasal obstruction and referred for further examination. Examination the following month documented a nasal septal deviation to the left, enlarged inferior turbinates, and no tenderness of the paranasal sinuses. The veteran was assessed with allergic rhinitis. The examiner noted that the veteran had a history of nasal allergies and a history of nasal obstruction due to an in-service injury. During a VA examination in May 1996, the veteran complained of a deviated septum and breathing problems; however, no objective findings were made. The veteran appeared at a hearing before the RO in June 1996. He testified that he had difficulty breathing since the time of the initial injury. He believed that he should be compensated since that time because the level of severity of his nasal disability had remained the same. The veteran's residuals of a nose fracture have been awarded a 10 percent schedular evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6502 (1999). Under the rating schedule, traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side is rated at 10 percent. This is the highest evaluation afforded pursuant to this Diagnostic Code. In summary, the Board finds that the evidence does not support an evaluation in excess of 10 percent for residuals of a nose fracture, because there is no medical evidence that the veteran has any symptom of a nasal fracture which is not encompasses in the rating criteria. Both of the recent VA examinations essentially made no objective findings other than the presence of a nasal deviation. The RO relied upon the veteran's complaints of difficulty breathing and properly granted him the benefit of the doubt and awarded him a 10 percent disability evaluation. The evidence of record contains no documentation of medical treatment for the veteran's breathing difficulties, nor does it contain evidence of any additional residuals of the nose fracture. Therefore, the Board can find no basis under which to grant the veteran an increased evaluation and the appeal must be denied. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Appeals for Veterans Claims in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (1999). The Board, as did the RO, finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his residuals of a nose fracture have resulted in marked interference with employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (1999) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). IV. Claim for Earlier Effective Date for Increased Evaluation The veteran believes that he should receive compensation from the date of his initial nose fracture because his residuals have been of consistent severity since that time. As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. The applicable regulation provides that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (1999). The record shows that the RO granted service connection for residuals of a nose fracture in May 1975 and assigned a noncompensable evaluation effective from September 1970. As the veteran did not file a substantive appeal to the May 1975 rating decision, that decision became final. 38 C.F.R. § 20.302(b) (1999). The veteran's new application for increased compensation was received on December 23, 1994. The veteran did not submit additional medical evidence at the time he submitted his claim for an increased evaluation. The first medical evidence which documented an increase in the severity of the veteran's residuals of a nose fracture was the February 1995 VA examination. Therefore, as there is no evidence of an increase in disability within one year prior to the receipt of the veteran's claim for an increased evaluation, the earliest possible date for entitlement to the 10 percent disability evaluation is the date of claim. See 38 C.F.R. § 3.400(o)(2) (1999). Therefore, the requirements for an effective date prior to December 23, 1994 have not been met and the appeal must be denied. ORDER Evidence of a well-grounded claim not having been submitted, service connection for PTSD is denied. As new and material evidence has not been submitted to reopen the claim of entitlement to service connection for residuals of a head injury, the appeal is denied. An evaluation in excess of 10 percent for residuals of a nose fracture is denied. An effective date prior to December 23, 1994 for the assignment of a ten percent disability evaluation for residuals of a nose fracture is denied. TRESA M. SCHLECT Acting Member, Board of Veterans' Appeals