BVA9500847 DOCKET NO. 93-00 688 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis. 2. Entitlement to service connection for arthritis of multiple joints and hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from January 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 1991 decision of the Department of Veterans Affairs (VA), Waco, Texas, Regional Office (RO). By that and later decisions the RO found that no new and material evidence had been submitted to reopen previously denied claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder and sinusitis. The RO also denied service connection for arthritis of multiple joints and hearing loss. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for a left knee disorder, low back disorder, left foot disorder, lung disorder, sinusitis, arthritis of multiple joints, and hearing loss. He asserts, in essence, that his left knee, low back, and left foot disabilities are the result of injuries sustained while on active duty. He states that he was treated on numerous occasions during service for residuals of those injuries. He further claims that he was also treated multiple times while on active duty for lung infections and sinusitis. He says he has hearing loss due to in-service acoustic trauma. He also states that he has been treated on numerous occasions for his left knee, low back, left foot, lung and sinus disorders over the years since his discharge from service. 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 no new and material evidence has been submitted to reopen claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis. It is also the decision of the Board that the veteran has not submitted evidence of well-grounded claims for service connection for arthritis of multiple joints and hearing loss. FINDINGS OF FACT 1. By an unappealed RO decision of February 1979, service connection was denied for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis. 2. Evidence submitted since the 1979 RO decision, and considered in association with the 1991 application to reopen claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis, is either cumulative in nature or, when viewed in the context of all the evidence of record, does not raise a reasonable possibility of a change in the prior adverse decision. 3. The veteran has not submitted evidence of plausible claims for service connection for arthritis of multiple joints and hearing loss. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the RO decision of February 1979, denying service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis, is not new and material; the claims of service connection for these disabilities are not reopened; and the 1979 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1993). 2. The veteran's claims for service connection for arthritis of multiple joints and hearing loss are not well grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from January 1968 to December 1969. The service medical records show that he underwent a preenlistment examination in March 1967. He reported that he had fractured his left foot at the age of 14. No pertinent defects were noted. He was hospitalized in February 1968, while on active duty, for an upper respiratory infection. It was noted that he had been seen repeatedly in sick call for the past few days and had fainted on the evening of admission. He was on Penicillin and a decongestant for maxillary sinusitis. His complaints were a productive cough with yellow sputum, malaise, and fatigue. Physical findings included bilateral marked nasal congestion, with purulent nasal discharge. The chest was clear. The veteran was treated with Tetracycline, decongestants and expectorants. He was discharged on the sixth hospital day in good condition and asymptomatic. His final diagnoses were upper respiratory infection and questionable sinusitis. Additional service medical records show that X-rays of the veteran's sinuses, taken later in February 1968, were reviewed in March 1968; it was noted that there had been no essential changes from a previous film. The veteran underwent a service medical examination in April 1968. He gave a history of fracturing his left foot in 1960 and of sinusitis, but the clinical evaluation was negative for any findings indicative of any of the disabilities at issue. The extremities, feet, spine, lungs, sinuses, ears, and hearing were clinically normal. A private hospital record, dated in June 1969, shows that the veteran was evaluated in an emergency room at that time after being involved in an altercation. Clinical findings included trauma to the right eye, tenderness over the L5 - S1 region, and a hematoma on the left thigh. X-rays of the skull, lower back and left femur were reported to show no fractures. Subsequently dated service medical records show that the veteran was treated for residuals of a right eye injury. Additional service medical records show that he was seen in October 1969 for a left frontal headache; no pertinent abnormal findings were noted, and the impression was probable tension headaches. The veteran underwent a service discharge examination in December 1969. Whispered and spoken voice hearing tests were reported as normal, 15/15. The ears, sinuses, extremities, feet, spine, and lungs were clinically normal. In his original VA compensation claim, filed in January 1970, the veteran only referred to residuals of a right eye injury. The veteran underwent a VA compensation examination in March 1970. He complained of a right eye disorder, intermittent left knee symptoms, including severe pain, and a variable chest condition, with a periodic racking cough and chest congestion. He also said that he still had a sinus condition. Clinical evaluation of his sinuses, ears, lungs, spine and lower extremities were normal. X-rays of the chest, skull and left knee were normal. No pertinent diagnosis was recorded. A July 1970 RO decision denied the veteran's claim for service connection for a right eye disability, holding that it was incurred while the veteran was AWOL and not in the line of duty. In August 1975 the veteran claimed service connection for residuals of a back injury, left foot and left knee disorders, and lung and sinus problems. VA outpatient clinic records show that the veteran was evaluated in January 1976 for a complaint of left knee pain with an onset date of 14 years earlier after he had fallen from a two-story building. He reported that, since that time, he had several other injuries and had been seen many times, and he was told the last time that he had tendinitis, a pinched nerve and bursitis. He said that his knee was usually wrapped, and he was given a cane and told to stay off his leg. Physical examination revealed good range of motion; it was noted that the knee joint appeared normal. An X-ray examination of the left knee was also normal. Further clinical evaluation of the veteran's left knee in an orthopedic clinic was essentially negative, aside from some point tenderness in the medial joint line, but an impression of questionable medal meniscus tear was recorded. The veteran underwent a left knee arthrogram shortly thereafter, which showed a tear in the inferior surface of the posterior horn of the left medial meniscus. The impression was disruption of the inferior surface of the posterior horn of the left medial meniscus. In January 1976, the veteran was also evaluated for left elbow pain of one days duration; X-rays were normal; and the impression was epicondylitis. Additional VA outpatient clinic records show that the veteran was seen for follow-up in the orthopedic clinic in February 1976. He reported that he had had left knee pain intermittently since age 12. He also reported a fall down a flight of stairs during service and said that he was treated with an Ace bandage at that time. Evaluation of the left knee in February 1976 was reported as essentially normal, and the impressions were left knee pain, questionable medial meniscus tear, and rule out arthritis. It was recorded in March 1976 that the veteran requested medication; it was noted that he gave a long history of low back pain and stated it always improved with muscle relaxants and heat. He stated that his low back pain was service connected (was pending). He declined an examination and said that if he did not have a muscle relaxant he knew that his problem would increase to the point of a need for hospitalization. A muscle relaxant was prescribed. He was seen in May 1976, and the examination at that time revealed a normal left knee except for tenderness over the lateral patella. The impression was chondromalacia patella. The veteran underwent a VA compensation and pension examination in February 1979. His complaints at that time included intermittent left-sided muscular back pain, left knee and left foot pain, and a history of an absence of some of his sinuses demonstrated by X-rays. He reported no history of any serious injury. He also gave a history of a severe upper respiratory infection and sinusitis in 1968, with subsequent recurrences, including some difficulty in the last year or two. Clinical evaluation revealed some nasal mucus discharge, with adequate drainage; there was no evidence of purulent discharge. Clinical evaluation of the lungs was normal; it was noted that the veteran had a little dry cough that was thought to be a residual of an upper respiratory infection and not particularly serious. Examination of the spine was normal, with no particular muscle spasm found and a normal range of motion. The left knee was carefully checked and found to be quite stable with a normal range of motion. There was no crepitation found; the veteran alleged the knee squeaked at times, but the examiner could not demonstrate it. The left foot and ankle were normal, with a normal range of motion. The examiner concluded that there was nothing found of any clinical significance. An X-ray examination of the lumbosacral spine revealed questionable spondylosis on the right side. X-rays of the left foot revealed minimal arthritic change. X-rays of the left knee were normal. X-rays of the sinuses revealed mucosal thickening along the left maxillary sinus which might be seen in chronic sinusitis; a tension cyst could not be completely excluded but the findings more strongly favored an impression of mucosal thickening and sinusitis. The clinical diagnoses included residuals of left maxillary sinusitis and minimal degenerative changes of the left foot. A history of muscular spasm of the low back was also noted, and the doctor stated that lung and left knee conditions were not found. In a September 1979 decision, the RO denied service connection for a back condition, left knee condition, left foot condition, lung condition, and sinusitis. The RO notified the veteran of the adverse action in a March 1979 letter, and he did not appeal. In an October 1981 compensation or pension claim, the veteran said he had dyslexia and a hearing problem since birth. In a statement submitted in June 1991, the veteran requested reopening of his previous claims for service connection. He also said that a 1980 industrial accident, which was the subject of a workmen's compensation case, aggravated preexisting problems with his knees and arthritic-like pains of his entire left side. In a July 1991 statement, the veteran alleged that in 1969 a VA office had rated him service connected, zero percent, for left knee, lung, and sinus problems. (In later statements the veteran alleged that service connection for these conditions had been granted in 1970.) The file shows service connection has never been established for any disability. The veteran underwent a VA general medical examination in August 1991. He complained of increasing pain causing sleep disturbance and decreased mobility, along with weather-aggravated joint pain. The clinical evaluation was negative for any pertinent abnormal findings. The respiratory system was normal. In August 1991 a VA orthopedic examination of the veteran was performed. He stated that he had knee, bilateral foot, and back pain during service, which he attributed to a fall down some stairs and several falls on ice. He said that he had had intermittent bilateral knee and low back pain ever since that time, and he gave a history of an episode of plantar fasciitis of the arch of the left foot during service. The veteran reported that most of his current problems dated to an accident in a warehouse in December 1980, when he fell 20 feet off a shelf onto a concrete floor, and incurred fractures of the left heel, proximal left femur, left wrist, and right inferior pubic ramus, requiring various operations. He said that subsequent to the 1980 accident he developed pain in both shoulders, and that for the last 3 or 4 years he had right hip pain. It was further noted that most of his back complaints were attributable to the fall, although he had had some back pain prior to that time. A history of surgical repair of a hammertoe on the left foot by fusion of the proximal interphalangeal joint, in about 1983 or 1984, was also noted. Physical examination and X-rays were performed. The diagnoses were: (1) Bilateral knee pain secondary to twisting injuries in a fall down stairs in service in 1968, with fairly normal knees to physical examination, with the exception of demineralization of the bones adjacent to the left knee, which could be attributed to the accident of 1980, and mild impairment of knee joint function; (2) history of multiple injuries resulting from a 20- foot fall to concrete in December 1980 while employed in a warehouse (including a postoperative left femur fracture with a hip disability); (3) history of compression fracture of he left os calcis when he landed on the left foot in a fall from a height, with marked deformity and disability of the foot and ankle, including osteoarthritic changes; (4) a postoperative fracture dislocation of the left wrist, including arthritic changes; (5) residuals of a fracture of the inferior pubic ramus, from the same fall in 1980; (6) a complaint of bilateral shoulder pain, with normal physical examination and X-ray findings; and (7) a complaint of intermittent back pain, probably secondary to musculoligamentous sprain incurred in the fall of December 1980 (the examiner noted that a slight narrowing of the L5 - S1 intervertebral disc space was not believed to be secondary to disc degeneration). The veteran underwent a VA medical examination in August 1991, in part, for the purpose of further evaluating his claimed lung condition. He said that he was hospitalized with pneumonia in 1968, while in basic training, and recovered uneventfully, but since that time he had been very subject to chest colds, with 4 to 6 episodes a year and lasting from a day or two to a month with bothersome coughing. His main symptoms were a cough and a raw feeling in his chest. A chest X-ray was normal. The diagnosis was history of frequent colds, not disabling. Pulmonary function studies showed a mild restriction. A VA audiological examination of the veteran in August 1991 revealed pure tone thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz of 25, 15, 15, 25, and 30, respectively, in the right ear; and 10, 10, 5, 5, and 0, respectively, in the left ear. Speech recognition ability was reported as 100 percent correct, bilaterally. The veteran also underwent a VA ear, nose and throat examination in August 1991. It was noted that X-rays showed underdeveloped sinuses; the veteran said that his frontal sinuses were very small and his ethmoid were poorly developed, but his maxillary were okay. The veteran further stated that his lack of sinuses caused him to have sinusitis (pressure, headaches, congestion). He also complained of an allergy to pollen which worsened his sinus condition and headaches since the 1970's. Physical examination revealed a very deviated right nasal septum and boggy mucosa. The impression was history of sinusitis. The doctor also noted that audiology studies showed a symmetric sensory neural hearing loss on the right, with normal hearing on the left. The veteran testified at a hearing conducted at the RO in March 1992 that he fell down some stairs and fell several times on ice during service, which resulted in injuries to his left knee, low back, and left foot. He said that he was treated on numerous occasions for residuals of those injuries during service and over the years ever since his separation from active duty. He also said that he sustained another left knee injury when he was hit with a 6-inch armor plate door during service. He said that he was hospitalized for a lung disorder and sinusitis while on active duty and, since that time, he was treated frequently for sinusitis and upper respiratory infections. He said that his hearing loss began as a result of his exposure to acoustic trauma while in service. He noted that he was exposed to excessive noise because of his duties on hangar and flight decks while aboard a ship. He explained that he developed a hearing deficit in the right ear because his right side was exposed to higher levels of noise. The veteran also testified that it was his belief that the service medical records were incomplete, since there were no records pertaining to his treatment for residuals of injuries sustained in a fall down some stairs. He added that he has had constant left knee, ankle and foot problems, recurrent pain and muscle spasms in the low back, and episodes of sinusitis and lung infections since service. The veteran underwent VA X-ray and magnetic resonance imaging (MRI) examinations of his left knee in March 1993. The X-ray examination showed demineralization but was otherwise unremarkable. The MRI study revealed changes involving the posterior horn of the medial meniscus consistent with degenerative changes; the medial meniscus was otherwise normal, and the lateral meniscus was unremarkable. There was a tiny amount of joint effusion that was thought to be not significant. It was also noted that the distal femur revealed some changes that were thought to be possibly related to a remote injury. II. Analysis A. Whether New and Material Evidence has been Submitted to Reopen Claims for Service Connection for a Left Knee Disorder, Low Back Disorder, Left Foot Disorder, Lung Disorder, and Sinusitis. In an unappealed February 1979 decision, the RO denied service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis. Unappealed rating decisions of the RO are final, with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. The question now presented is whether new and material evidence has been submitted since the prior adverse decision on service connection for these conditions which would permit reopening of the claims. Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative of the issue at hand and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1991). The 1979 RO decision noted above considered the veteran's statements in support of his claims, medical records related to his 1968-1969 active duty, a 1970 VA examination, 1976 VA treatment records, and a 1979 VA examination. The evidence then available showed no left knee disorder during service; a normal 1969 discharge examination; complaints but no abnormal findings at the 1970 VA examination; and no abnormal findings until treatment in 1976. Regarding the low back, records from the time of service contain an isolated reference to low back tenderness while the veteran was being examined for various injuries in an altercation in June 1969; although later service medical records, including the December 1969 discharge examination, were normal; and the first post-service medical evidence of back symptoms was from 1976. The service medical records do not refer to left foot problems (other than a history of a preservice fracture); the 1969 discharge examination was normal; and the first post-service medical evidence of a left foot problem is the 1979 VA examination, when minimal arthritis was found. Concerning the lungs, the service medical records show treatment for an upper respiratory infection in early 1968, but later service records, including the 1969 discharge examination, were normal; and there were complaints but normal findings at the 1970 and 1979 VA examinations. The veteran was treated for questionable sinusitis during service in early 1968 (while being treated for an upper respiratory infection), but later service records, including the 1969 discharge examination, showed no sinusitis; there were complaints but normal findings at the 1970 VA examination; and sinusitis was first medically documented after service at the 1979 VA examination. The additional evidence received subsequent to the February 1979 RO decision consists of VA examinations of the veteran in August 1991, a transcript of hearing testimony by the veteran in March 1992, and a report of an MRI and X-ray examination of the veteran's left knee in March 1993. The additional medical evidence from years after service contains much cumulative information, diagnosing conditions previously documented at the time of the 1979 RO decision. Moreover, none of the medical evidence is material, since it only documents the conditions years after service without linking it to incidents of service (other than by reciting an inaccurate history reported by the veteran, as done by the 1991 VA orthopedic examiner when stating that the veteran had knee pain due to a purported fall down stairs in service). Cox v. Brown, 5 Vet.App. 95 (1993); Reonal v. Brown, 5 Vet.App. 458 (1993). Much of the additional medical evidence links the veteran's current orthopedic conditions to a 1980 post-service industrial accident, and this, of course, is not material evidence, since it raises no reasonable possibility of a change in the 1979 RO decision. The veteran's testimony in March 1992 is largely not new evidence since he made many of the same assertions that the disabilities in question began during service at the time of his original claim in 1979. Reid v. Derwinski, 2 Vet.App. 312 (1992). He did present more specific information as to his alleged injuries and treatment while on active duty, but even if this is considered new evidence, it is not material, because, when viewed in the context of all the evidence (including medical records showing none of the conditions as chronic in service, and no continuity of symptoms for years after service), the testimony lacks sufficient weight or significance to raise a reasonable possibility of a change in the 1979 RO decision. Kates v. Brown, 5 Vet.App. 93 (1993). In view of the foregoing, I find that the evidence that has been submitted subsequent to the February 1979 RO decision is not new and material, within the meaning of the cited legal authority. It follows that the claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis are not reopened, and the February 1979 RO decision remains final. B. Service Connection for Arthritis of Multiple Joints and Hearing Loss. The threshold question for the Board's consideration is whether the veteran has presented evidence of well-grounded claims for service connection for arthritis of multiple joints and hearing loss; that is, claims which are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of the claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). For the reasons explained below, I find that these claims are not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and service incurrence will be presumed for a sensorineural hearing loss or arthritis which is first manifest to a compensable degree within a year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. There is no medical evidence that the veteran had arthritis of multiple joints during his 1968-1969 active duty, and the claimed condition was not shown for many years after service. The veteran asserts that he has multiple joint arthritis due to undocumented injuries during service. However, for his claim to be plausible or well grounded, it must be supported by competent evidence, not just allegations. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Under the circumstances, this would require competent medical evidence of causation to link remote incidents of service and arthritis first shown many years later. Grottveit v. Brown, 5 Vet.App. 91, (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran has presented no competent medical evidence of arthritis during service or within the year thereafter, no medical evidence of continuity of symptoms over many years since service, and no medical evidence to link multiple joint arthritis with events of service long ago. Consequently, the claim for service connection for this disability is implausible, and must be dismissed as not well grounded. Hearing loss similarly is not shown in service or for many years thereafter, and has not been linked to service by competent medical evidence. Moreover, the August 1991 VA audiology test results indicate the veteran does not have a hearing disability of either ear for VA compensation purposes. 38 C.F.R. § 3.385. Service connection requires not only a disease or injury in service, but also a current disability. In the absence of a current disability, a claim for service connection is implausible and not well grounded. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Thus, the claim for service connection for hearing loss also must be dismissed as not well grounded. ORDER New and material evidence not having been submitted, the application to reopen claims for service connection for a left knee disorder, low back disorder, left foot disorder, lung disorder, and sinusitis is denied. The claims for service connection for arthritis of multiple joints and hearing loss are dismissed as not well grounded. L. W. TOBIN 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.