BVA9504014 DOCKET NO. 92-19 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES Entitlement to service connection for a back disorder. Entitlement to service connection for an eye disorder. Entitlement to service connection for a left knee disorder. Entitlement to service connection for allergic rhinitis. Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran had active service from December 1984 to December 1988. This appeal to the Board of Veterans' Appeals (Board) arises from a November 1990 rating decision by the Sioux Falls, South Dakota, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the disorders at issue are the result of service. He states that he was treated for each of the disorders during service, and has continued to have problems with them subsequent to discharge. The veteran's representative has further argued that the local representative was not give an opportunity to review the case prior to the case being returned to the Board. It is therefore argued that the claim should again be remanded. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for a left knee disorder. It is the Board's decision, further, that the evidence supports the grant of service connection for chronic unstable low back syndrome with spasm, allergic rhinitis, photophobia and conjunctivitis, and that the veteran has not submitted a well- grounded claim with regard to the issue of entitlement to service connection for a respiratory disorder. FINDINGS OF FACT 1. A chronic unstable low back syndrome with spasm had its origin in service. 2. Photophobia had its origin in service. 3. Conjunctivitis was shown both in service and on examination shortly after service, and there is a reasonable etiological relationship between the manifestations. 4. The veteran did not require treatment for a left knee disorder during service, and there is no etiological relationship between any incidents of service and tenderness shown on the most recent examination. 5. Allergic rhinitis is objectively shown on current examination and is reasonably related to the manifestations in service. 6. A chronic respiratory disorder is not currently shown. CONCLUSIONS OF LAW 1. A chronic unstable low back syndrome with spasm was incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991). 2. Photophobia was incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991) 3. Conjunctivitis was incurred in peacetime service. 38 §§ 1131, 5107 (West 1991). 4. A left knee disorder was not incurred in or aggravated by service. 38 §§ 1131, 5107 (West 1991) 5. Allergic rhinitis was incurred in peacetime service. 38 §§ 1131, 5107 (West 1991). 6. The claim for service connection for a respiratory disorder is not well grounded. 38 §§ 1131, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's representative, at the Board, has argued that the case is not ripe for Board review because the representative at the RO level did not submit an argument subsequent to the remand, in contravention of M21-1, Part 4, Chapter 8.40. This is a correct factual reading, in that the local representative neither completed a new VA Form 1-646 (1-646), nor indicated that he wished to incorporate the earlier 1-646 as the current argument. However, a review of the initial 1-646 indicates that the veteran's representative made detailed arguments on the merits and did not limit his argument to the initial issue on appeal which was whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for the disorders at issue. Accordingly, while the development was not perfect, the Board finds that the error by the RO did not prejudice the veteran. Initially, the Board notes that, except for the respiratory disdrder issue, the veteran's claims are well grounded. By this, we mean that he has submitted claims that are plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claims. 38 U.S.C.A. § 5107 (West 1991). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). I. Entitlement to service connection for a back disorder The veteran was treated in May 1985, at which time he reported a 3 to 4 day history of pain from the shoulders to the mid back. He denied any trauma. There were no obvious deformities of the spine or edema. Range of motion was full with minimal difficulty. Tenderness was noted at the mid spine during palpation. The assessment was musculoskeletal pain, and the veteran was to be treated with local heat and medication. On follow-up treatment the next month, there was mild tenderness over the entire lumbosacral area. Straight leg raising was normal, and flexion was good. The assessment was mild muscle strain. Treatment later in June 1983 was predicated on continuing complaints of low back pain. Range of motion remained good. No additional treatment was required, and when the veteran was examined in November 1988, for the purpose of separation from service, the spine was normal, and no pertinent abnormalities were noted. On VA compensation examination in June 1989, the veteran gave a history of back injuries in service.. During examination, findings included mild muscle tenderness and spasm. Straight leg raising was to 90 degrees with minimal discomfort. The diagnoses included chronic unstable low back syndrome and upper back injury with residual left shoulder bursitis. The findings on VA examination in 1989 with regard to tenderness and spasm of the back are consistent with the findings during service. Moreover, the examining physician concluded that the disorder was chronic in nature. Given the inservice symptomatology, and in view of the findings on examination, a reasonable doubt arises as to the etiology of the current low back syndrome. Under the provisions of 38 U.S.C.A. § 5107 (West 1991), this doubt must be resolved in the veteran's favor. Accordingly, service connection for chronic unstable low back syndrome with spasm is appropriate. II. Entitlement to service connection for an eye disorder The veteran has contended that he was exposed to jet fuel in a shower, injuring his eyes. There is no evidence of such an incident during service. We note instead that when the veteran was seen in September 1988, he gave a five to seven day history of pain in the eyes. Redness was noted, without drainage or foreign bodies. The assessment was acute conjunctivitis. No further treatment was required,. When the veteran was examined in November 1988 for the purpose of separation from service, the eyes, pupils and ocular motility were normal. On examination for compensation purposes in June 1989, mild allergic conjunctivitis was reported. On VA ophthalmological examination in August 1989, there were no corneal abnormalities, and no discharge was shown. Movements and fundi were normal. The diagnoses included photophobia In view of the findings on examination shortly after the reported conjunctivitis in service, the Board finds a reasonable doubt with regard to the etiology of the post-service conjunctivitis. This doubt must be resolved in the veteran's favor. Accordingly, service connection for conjunctivitis is in order. Moreover, while photophobia was not objectively shown during the veteran's period of service, its appearance on examination in August 1989, so shortly after the veteran's discharge from service, similarly raises a reasonable doubt as to its etiology. Under the provisions of 38 U.S.C.A. § 5107 (West 1991), this doubt must be resolved in the veteran's favor. Accordingly, service connection for photophobia is in order. III. Entitlement to service connection for a left knee disorder A review of the service medical records indicates that there was no symptomatology, diagnosis or treatment for any form of left knee disorder. Moreover, when the veteran was examined in November 1988, he did not report any left knee disabilities, and the lower extremities were normal. The veteran stated on the most current VA compensation examination that he injured his left knee in 1986. However, a review of the service medical records show no such findings. On compensation examination, there was tenderness along both knee joints, left more than right. There was no palpable intraarticular fluid or ligament instability. X-ray films of the left knee showed the bony structures to be normal in appearance. The report of examination shows pathology limited to tenderness in the left knee. There is no relevant symptomatology during service, and the veteran has presented no evidence demonstrating a relationship between any current tenderness and incidents in service. Under such circumstances, service connection for a left knee disorder is not warranted. IV. Entitlement to service connection for allergic rhinitis On service entrance examination in May 1984, the veteran reported allergies to dogs and cats. He was treated in February 1985 for difficulty breathing, defined as being hard to get air into the chest. He stated he may have had asthma, but had never seen a physician for that disorder. On examination, there was poor air flow. The chest was clear without wheezing, rales or rhonchi. The assessment was nasal congestion and rhinitis. On treatment in November 1985 for nasal congestion, all lung fields were clear. The assessment was viral syndrome. Follow-up treatment for viral syndrome was required in February 1986 and February 1986. An upper respiratory disorder was shown in September 1986. Complaints of a runny nose were elicited in December 1986. On examination, the nose and throat were clear. A history of congestion, runny nose and chills was given when the veteran was seen in March 1987. The throat and lungs were clear. The assessment was viral syndrome. A two day history of cold syndrome was given when the veteran was seen in October 1987. The assessment was viral syndrome. On additional treatment two weeks later, the veteran reported a sharp pain in the chest. In January 1988, the veteran reported cold symptoms of three days duration. The assessment was possible strep. On separation examination, the veteran reported hay fever. The lungs and chest were normal, with asthma reported, alleviated by over the counter medication. When the veteran was examined in June 1989 for compensation purposes by the VA, the diagnoses included severe allergic rhinitis. This finding, shortly after discharge from service, was consistent with the symptomatology during the veteran's period of service, and leads the Board to conclude that there is an etiological relationship between the incidents of service and allergic rhinitis. Accordingly, service connection for that disorder must be granted. V. Entitlement to service connection for a respiratory disorder The initial consideration for Board review is whether the veteran has submitted a well-grounded claim for service connection for a respiratory disorder. To make this determination, the Board must consider the requirements for a grant of service connection. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Therefore, if the evidence does not demonstrate the presence of a current disability, the claim is not plausible, and must be dismissed as not well-grounded. A review of the June 1989 VA compensation examination shows no cough, wheeze or breathing problem. There was a wheeze only on the prolonged phase of exhalation. Spirometry testing was normal. Such findings lead the Board to conclude that a respiratory condition, other than allergic rhinitis, is not currently shown. Therefore, the veteran has failed to meet one of the threshold requirements for the grant of service connection for a respiratory disorder, and the claim must be dismissed as not well-grounded. ORDER Service connection for a chronic unstable low back syndrome with spasm, photophobia, conjunctivitis and allergic rhinitis is granted. Service connection for a left knee disorder is denied. The veteran's claim for service connection for a respiratory disorder is dismissed. J. U. JOHNSON 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.