BVA9504281 DOCKET NO. 92-15 512 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a deviated nasal septum. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for back and neck disorders. 4. Entitlement to service connection for brain trauma. 5. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith INTRODUCTION The veteran had active qualifying service from June 1973 to June 1979. This appeal came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) at Waco, Texas. CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is contended that the RO erred when they denied service connection for a deviated nasal septum, back and neck disorders, brain trauma and for hearing loss. Additionally, it is argued that new and material evidence has been submitted which warrants reopening of his claim for service connection for a psychiatric disorder. Specifically, the veteran asserts that he injured his nose on two occasions during service. The resulting nose fracture has caused him to experience difficulty breathing through the right side of his nose. During service, he did a lot of heavy lifting and had several minor back injuries resulting in muscle spasms. He continues to have low back pain. It is also contended that inservice psychiatric symptomatology indicated the early stages of a psychosis. 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 grant of service connection for cervical spine osteoarthritis and a left ear hearing loss. A well-grounded claim has not been presented with respect to the issue of service connection for brain trauma. The evidence supports, however, the grant of service connection for a deviated nasal septum, recurrent low back strain and a right ear hearing loss. It is also the decision of the Board that the claim has been reopened by new and material evidence and that the preponderance of the evidence is in favor of entitlement to service connection for an acquired psychiatric disability. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. A deviated nasal septum was reported during service following contusion to the nose. 3. The RO denied service connection for a psychiatric disorder in August 1984, September 1984 and most recently in February 1988. The veteran was duly notified but did not appeal. 4. Much of the evidence submitted to reopen the claim for service connection for a psychiatric disability has not been considered before, and tends to show a continuity of psychiatric symptoms from service to the present date and the onset of schizophrenia during service. 5. Psychiatric symptomatology was first manifested in service and continued postservice; his inservice decompensation represents the onset of the post service diagnosed schizophrenia. 6. Chronic low back strain was manifested during active service. 7. A chronic disability of the neck was not manifested during service; cervical spine osteoarthritis was not present during service and was not manifest to a compensable degree within one year from date of termination of service. 8. The veteran has failed to submit evidence or to specifically identify relevant documents to justify a belief by a fair and impartial individual that the claim of service connection for brain trauma is plausible as residuals of this alleged inservice injury were not demonstrated during service or post service. 9. High frequency, bilateral hearing loss was noted at time of discharge from service and upon recent audiological examination. Current left ear hearing status does not meet VA regulations for service connection for hearing impairment. Right ear hearing impairment, however, does meet the criteria, and is thus, determined to be of service origin. CONCLUSIONS OF LAW 1. A deviated nasal septum was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137 (West 1991); 38 C.F.R. § 3.102 (1994). 2. An unappealed determination by the RO in February 1988 denying entitlement to service connection for an acquired psychiatric disorder became final, based upon the evidence then of record; the claim has been reopened by new and material evidence. 38 U.S.C.A. §§ 5107, 5108, 7105(a) (West 1991); 38 C.F.R. §§ 3.102, 3.104(a), 3.156(a) (1994). 3. Schizophrenia was incurred during active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.307, 3.309 (1994). 4. Low back strain was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.303(b) (1994). 5. Chronic disability of the neck was not incurred in or aggravated in service. Cervical spine osteoarthritis was not incurred in or aggravated in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.307, 3.309 (1994). 6. The claim of service connection for a brain trauma, as a matter of law, is not well-grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991). 7. A high frequency right ear hearing loss is of service origin. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385 (1994). 8. A high frequency left ear hearing loss is precluded from service connection as current hearing status does not meet pure tone and speech recognition criteria for recognized hearing loss. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims as to entitlement to service connection for a deviated nasal septum, an acquired psychiatric disorder, back and neck disorders and for hearing loss are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented claims which are plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the veteran's claims. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Entitlement to Service Connection for a Deviated Nasal Septum It is the veteran's contention that he fractured his nose during service, resulting in a deviated nasal septum. We note that at the time of service entrance no disorder of the nose or sinuses was noted. The service records do show that the veteran was seen in March 1975 for a contusion to the nose. At that time, it was noted that there was no severe injury to the nose, but deviation to the nose was recorded. This deviation to the right was noted again upon VA examination in 1991. The law provides, in part, that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence warranting a finding that the disability preexisted service will rebut the presumption. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137 (West 1991). While the evidence of record is not conclusive that the veteran fractured his nose during service, no defect of the nose was seen upon service entrance, and as there is no clear and unmistakable evidence that the nose deviation preexisted service, service connection is allowed for a deviated nasal septum. Whether New and Material Evidence Has Been Submitted to Reopen a Claim for Entitlement to Service Connection for an Acquired Psychiatric Disorder As indicated earlier, this claim was previously denied by the RO in February 1988. The evidence of that record consisted of service medical records and post service private and VA treatment records from 1983-1988 showing treatment for schizophrenia. This evidence showed that the veteran was seen in 1977 for complaints of tension associated with his job. The diagnosis was adult situational reaction. In 1978, he was seen again with the notation that he was separated from his wife due to wife beating. Acute situational stress due to marital problems was noted. Private medical records from 1983 and 1984 and VA records from 1987 and 1988 show a diagnosis of schizoaffective disorder. The RO denied service connection for an acquired psychiatric disorder in February 1988 as an acquired psychiatric disorder (schizophrenia) was not shown during service or within the presumptive period thereafter. The veteran did not timely appeal this decision within one year from the date of notice. Evidence received since the 1988 decision consists of additional private and VA medical records, to include a VA psychiatric examination from April 1994. Also added to the record was the transcript of an August 1992 personal hearing. Essentially, the medical records show that the diagnosis of schizophrenia was continued and that the veteran received intermittent treatment for this disorder. At the 1992 personal hearing, the veteran testified in detail concerning his inservice and post service psychiatric symptomatology. He said that while schizophrenia was not diagnosed during service, his inservice behavior showed that he was "decompensating," indicating the onset of a psychosis. He pointed out that his inservice quarterly marks and his general performance "went down radically" while he was seeing a psychiatrist during service. As requested by the Board in a remand determination in March 1994, a psychiatric examination was conducted in April 1994. The examiner provided an opinion as to the extent and nature of the psychiatric disorder now present and expressed an opinion as to when and how it was first manifested. The evidence submitted since the RO's February 1988 denial bears directly and substantially upon the instant case. The Board thus concludes that the evidence is both new and material to reopen the claim. In light of the determination that the evidence submitted by the veteran is new and material, the Board must now undertake a de novo review of the case. The evidence of record at the time of the February 1988 denial has been summarized above. Also, as noted above, the evidence added to the record subsequent to this denial includes the veteran's testimony at an August 1992 hearing. In further detail, we note that the veteran said that when he was seen by a psychiatrist during service, the physician told him that there was no apparent disabling psychosis or neurosis, although he did exhibit obsessive-compulsive behavior. He added that he suffered from hallucinations and depression. Immediately after separation from service, he spent approximately six months living in his house trailer trying to "sort out my life." Upon VA examination in April 1994, the veteran gave a detailed history of his difficulties in service and life subsequent to separation from service. The veteran said that he experienced auditory hallucinations during service, and that he had problems relating to others. He was suspicious and experienced difficulty following rules. He felt that people were plotting against him. He also had marital problems, and reported that on one occasion he hit his wife and left her because voices were commanding him to do so. His work performance declined during service, and he was ultimately placed in a non-pressure job type situation without any responsibility until time for his discharge. After separation from service, he lived in the backwoods for several months. The voices started again, and he started having some mixed delusional hallucinations. He got a job as a technical writer, but he said that he continued to have auditory hallucinations. His problems escalated in time, and he had homicidal ideation and ideas of reference. He had grandiose ideas. Later, he worked as a cab driver for approximately one year. He was reportedly doing fine during this period. When he decided to attend college and work on an engineering degree, however, the pressure soon started to increase, and he heard voices again. He went to a psychiatrist who started him on medication to help with his auditory hallucinations. He was also depressed and made suicidal gestures. He took a large dose of pills and was sent to a state hospital where he stayed for two months. After that he was placed in a halfway house for three months. He was subsequently hospitalized on several occasions. It was noted that he ultimately ended up living in the woods, in the park or under bridges. Currently, he still heard voices, but now they were not commanding or accusatory. The physician noted that the appellant still had ideas of reference and "a lot" of negative symptoms. He had poor content and some circumstantiality in his speech. He had no recreational interest and had decreased sexual interest. He had decreased need for closeness. The physician noted that these were negative symptoms of schizophrenia. He also indicated that the veteran had some bizarre fantasy, an inappropriate affect, was argumentative and suspicious and created a lot of disruption in relationships with other people. The diagnosis was chronic schizophrenia. The examiner summarized that the veteran, since the time of service, developed some psychiatric manifestations which he considered to be related to the inservice situational reaction due to situational problems with his family. He considered the veteran to be schizophrenic, and he opined that this disorder had its onset at the time of service, although it did not "flourish" at that time. Through the years, however, the veteran's condition had progressively worsened. After a total review of the claims file, it is still difficult to make a determination as to the date of onset of the veteran's schizophrenia. While such a diagnosis was not made during service, the veteran has presented a compelling argument that his decompensation during service represents the onset of the ultimately diagnosed disorder. In support of his argument is the recently submitted opinion of the VA examiner who opines that the veteran's schizophrenia had its onset during service. While it may be argued that the examiner based his opinion on a history related by the veteran that included reports of hallucinations and delusions during service (not shown in the actual service medical records), it is our conclusion that a reasonable doubt has been raised as to service origin. Under 38 C.F.R. 3.102 (1993), this doubt is resolved in the veteran's favor. Thus, service connection is warranted for schizophrenia based on service incurrence. Entitlement to Service Connection for Back and Neck Disorders The service medical records are negative for complaints of, history or diagnosis of a back disorder at time of enlistment examination in March 1973. These records show that the veteran was first seen for back complaints during service in December 1975. In January 1976, he was seen again for a "nagging backache." An apparent leg length difference was noted, and the appellant gave a history of childhood back pain and an injury to the back at age seven. X-rays showed transitional vertebra L5 with pseudoarthrosis at L5 suggestive of unilateral spondylolysis on the left. The examiner noted that the skeletal anomalies "may or may not" explain the veteran's symptoms. He would consider the "EPTE Bd." if the veteran was chronically symptomatic. He did not feel, however, that there was consistent and sufficient justification for review by the Medical Board. He recommended treatment for lumbosacral strain. The veteran was seen on other occasions for back complaints, and it is our conclusion that the presumption of soundness has not been rebutted with clear and unmistakable evidence as to the chronic low back strain which was noted during service. At the time of VA examination in January 1991, the veteran gave a history of low back pain and muscle spasms during service and off and on since separation from service. The physician's diagnoses included recurrent low back strain. Subsequent correspondence and the veteran's testimony at the August 1992 hearing attest to the fact that he has experienced low back pain over the years. As the veteran had low back complaints during service, and as they were recognized by a VA examiner in 1991 as a chronic disorder, service connection for low back strain is granted. We have considered the veteran's contention and sworn testimony that he has a cervical disorder of service origin. Moreover, we note that the service records show that he was seen for neck pain in July 1975 following an automobile accident which occurred approximately eight months earlier. No cervical disorder was diagnosed at that time or during the subsequent years before the veteran's separation from service. Many years later, upon VA examination in 1991, minimal cervical spine osteoarthritis was noted. It is the determination of the Board that the evidence related above preponderates against a finding that current minimal arthritis of the cervical spine is the result of military service. To relate the post service diagnosis of cervical spine osteoarthritis to the veteran's military service would be pure conjecture. Clinical findings are not of record to suggest that current cervical spine arthritis is related in any way to military service. Moreover, there is no continuity of symptoms following service separation regarding the neck to support a finding that a chronic disorder of the neck was manifested during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). In considering the transcript of the August 1992 hearing as to the claims regarding service connection for back and neck disorders, we note that the lay testimony given is useful in assessing the current problems and disability, but is not competent to establish etiology or causation of the veteran's transitional vertebra and pseudoarthrosis and osteoarthritis of the cervical spine. As a layman, he is not qualified to proffer an opinion as to medical etiology, such opinion would be probative only if proffered by a medical expert. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Entitlement to Service Connection for Brain Trauma With regard to the issue of entitlement to service connection for brain trauma, the threshold determination to be made is whether the veteran had submitted evidence in support of his claim which is "sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a) (1993). In its interpretation of this statute, the United States Court of Veterans' Appeals (Court), in Murphy v. Derwinski, 1 Vet.App. 78 (1990), has held that where the veteran is unable to submit a well grounded claim - one that is plausible or meritorious - his appeal must fail. In legal terminology, this is the veteran's "burden of proof" - he must submit evidence upon which a "belief" may be established by one who is "fair and impartial," that his claim has merit, that it is plausible. We note that under this statute the VA has no duty to assist the veteran when it has been determined that his claim is not well grounded (38 U.S.C.A. § 5107(a)), and there is no shift in the burden of proof which requires the VA to show that the veteran's claim is not meritorious simply because he made a claim. 38 U.S.C.A. § 5107(b) (1993). It is the veteran's contention that he incurred brain trauma as a result of neck injuries during service or that it could be a "side effect" of the neck injuries and the psychosis together. While the service records do show lacerations to the head on three occasions (March 1975, February 1977 and February 1979), brain trauma was not reported. Additionally, post service records do not show or suggest that there are residuals from any alleged inservice trauma to the head. In fact, recent neurological examination by the VA in 1994 was negative. The crucial determination before the Board is to determine whether the veteran has submitted evidence sufficient to demonstrate to a "fair and impartial individual" that he now has residuals of an inservice brain trauma. As the evidence of record shows, there are no current abnormalities of the brain. Clearly, his claim is not well-grounded and has no merit. It is not plausible or meritorious. Entitlement to Service Connection for Bilateral Hearing Loss In cases before the Board regarding entitlement to service connection for hearing loss, 38 C.F.R. § 3.385 (1994) defines the level of defective hearing which must be clinically established in order to classify the defective hearing as a disability for which service connection can be granted. The Board is bound by this regulation. 38 U.S.C.A. § 7104(c) (West 1991). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1994). The service medical records include the following results from an audiological evaluation at time of service enlistment examination in March 1973. Pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 20 LEFT 20 15 10 5 At the service discharge examination on May 8, 1979, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 5 30 LEFT 20 25 10 5 15 At 6000 Hertz, the right ear showed a pure tone threshold of 50 while the left ear showed a decibel threshold of 40. High frequency hearing loss in both ears was reported. Subsequent audiological testing by VA in April 1994 showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 5 20 40 LEFT 25 15 5 35 35 Speech recognition was 100 percent in the right ear and 98 percent in the left. The audiologist's summary of test results was that there was a bilateral mild to moderate upper high frequency sensorineural hearing loss. It is the determination of the Board that the evidence related above supports the grant of service connection for hearing impairment in the right ear. It does not support, however, the grant of service connection for left ear impairment. As noted above, 38 C.F.R. § 3.385 precludes service connection in the left ear as the level of defective hearing is not of the level for which service connection can be granted. In the right ear, however, we note that the auditory threshold at 4000 Hertz is 40 decibels. Service connection for right ear hearing impairment is warranted as abnormal levels were noted at time of service separation and are currently of a level for which service connection can be granted. ORDER Service connection for a deviated nasal septum is granted. New and material evidence has been submitted which established entitlement to service connection for schizophrenia. Service connection for an acquired psychiatric disorder is granted. Service connection for a chronic disability of the neck, including osteoarthritis of the cervical spine, is denied. Service connection for recurrent low back strain is granted. The claim of service connection for brain trauma is not well- grounded, and the appeal is dismissed. Service connection for a right ear hearing loss is granted. Service connection for a left ear hearing loss is denied. 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.