BVA9503672 DOCKET NO. 93-09 310 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence sufficient to establish service connection for a back disorder has been submitted. 2. Entitlement to an increased disability evaluation for paranoid schizophrenia, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from March 1953 to October 1954. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1991 and February 1992 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has submitted new and material evidence sufficient to establish entitlement to service connection for a back disorder. He further contends that his service-connected psychiatric disorder has sufficient worsened to warrant entitlement to a disability evaluation in excess of the 50 percent rating currently assigned. 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 new and material evidence sufficient to reopen the claim to service connection for a back disorder has not been presented. It is further the decision of the Board that the weight of evidence is against an increased disability evaluation for the appellant's service-connected paranoid schizophrenia. FINDINGS OF FACT 1. The appellant was diagnosed with schizophrenia during service after a period of hospitalization for psychotic symptoms; subsequently, he was discharged and service connected for paranoid schizophrenia. 2. Service-connection for a back disorder was denied by the Board in June 1985. The appellant was notified of that decision and that decision became final. 3. The evidence presented in connection with the appellant's request to reopen his claim to service connection for a back disorder is for the most part redundant of evidence already of record, and where new does not suggest a relationship between his current back disorder and his subjective complaints for back pain in service. 4. The appellant's service-connected paranoid schizophrenia is currently manifested by subjective complaints for visual and auditory hallucinations, absent objective evidence of severely impaired industrial and social adaptability, with clinical findings for mildly disabling paranoid schizophrenia. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim for service-connection for a back disorder has not been submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The schedular criteria for a disability evaluation in excess of 50 percent for the appellant's service-connected paranoid schizophrenia are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. I. Background A review of the record shows that the appellant served on active duty from March 1953 to October 1954. Service medical records reflect no back complaints or findings on entrance examination in 1953. In May 1953, the appellant reported falling in to a foxhole two weeks earlier and having pain in the buttocks and in all muscles; tenderness over the coccyx was noted and the appellant was diagnosed with a contusion of the coccyx. Subsequently, the appellant complained of backache; an x-ray study revealed no significant back pathology. In June 1953, an orthopedic examination revealed no significant back pathology. In August 1953, the appellant was seen for back complaints and the impression was a protruding intervertebral disc; on a subsequent examination by an orthopedic specialist in August 1953, the appellant's condition was thought to represent a mild lumbosacral strain, and limited duty was not recommended at that time. In September 1953, he was admitted to the hospital for back pain radiating down the left leg; he was diagnosed with a herniated nucleus pulposa of the left lumbosacral joint. The appellant continued to have complaints for low back pain and he was kept on limited duty; in January 1954, an orthopedic consultant commented that the clinical findings were not suggestive and certainly not conclusive for the diagnosis of herniated nucleus pulposus. On examination in May 1954, no orthopedic condition was found, and the appellant was diagnosed with malingering. Service medical records also show that, in 1954, the appellant was hospitalized due to psychotic symptoms; he was noted to have appeared paranoid, inappropriate in his behaviors and actions, and impaired in judgment. The appellant was diagnosed with schizophrenic reaction, catatonic type, in partial remission. After about 2-3 months of hospitalization, he was separated from service and placed on disability retirement due to his mental disorder. On VA psychiatric examination March 1955, the appellant was reported to have no delusions or hallucinations, no gross memory impairment, and to be oriented with good insight. By rating action dated April 1955, the appellant was service connected for schizophrenic reaction, catatonic type, in remission at the 10 percent disability level. Service connection for a back condition was denied since it was not shown on the most recent examination. By rating action dated February 1957, the appellant's service- connected psychiatric condition was evaluated as 70 percent disabling based on recent medical findings. On VA psychiatric examination in December 1956, the appellant was diagnosed with an active, paranoid type, schizophrenic reaction manifested by hallucinations, delusions, some grandiose ideas regarding religion and shallow effect. He was also noted to be unemployed at this time. On VA examinations conducted in March 1955, December 1956, and May 1959, no musculoskeletal abnormalities were found. Periodic VA psychiatric examinations revealed essentially no change in the appellant's mental condition until May 1964. On VA examination in May 1964, the appellant's mental condition was noted to have improved; the examiner stated, in part, that there was no disturbance of central thought process or content, no hallucinations or delusions, judgment appeared fairly sound, goal idea was readily reached, he was very concrete; however, he was noted to be very constricted in his relationships with others and appears to have no social relationships outside his family. The impression was chronic schizophrenic reaction, paranoid type, presently in fair remission. He was noted to be employed at this time as a longshoreman since 1957. By rating action dated June 1964, the appellant's service- connected psychiatric condition was evaluated as 50 percent disabling. On VA psychiatric examination in July 1966, the appellant's metal condition was essentially unchanged; the impression was chronic schizophrenic reaction, paranoid type, presently in fair remission. He was noted to be employed as a longshoreman. Private outpatient treatment reports dated August 1978 reflect complaints for back pain radiating into both lower extremities related to a 15 foot fall at work; the appellant noted a similar episode 4 years earlier. He was diagnosed with pre-existing lumbar arthritis, aggravated by trauma, and treated with Naprosyn and Elavil; the appellant was followed for this condition through January 1979 when it was noted to have improved. VA outpatient treatment reports dated December 1980 to December 1981 reflect follow-up care for the appellant's psychiatric disorder; they show that he takes Haldol for control of his psychiatric condition. VA outpatient treatment report dated July 1983 shows that the appellant was seen for complaints of back pain. An x-ray study revealed no abnormalities, and the impression was "no active sciatica or spinal root compression, but low grade condition is aggravated by lifting and labor, and [the] patient should refrain from strenuous physical exercise." With respect to the appellant's claim to service connection for a back disorder, the appellant's employer submitted a letter dated September 1983. In this letter, it was reported that the appellant may have had an injury at work; however; the employer indicated that it had no evidence of the occurrence of an injury, and reported that Dr. Samuel Romano, the company's treating physician, was deceased and his records were unavailable. By rating action dated October 1983, VARO denied service connection for a back condition. The appellant claimed that he sustained a back injury during basic training for which he sought treatment throughout his military service. In a decision dated June 1985, service connection for a back disorder was denied by the Board after review of the appellant's service medical records and post-service medical records including VA examination reports, a private outpatient treatment report dated August 1978, VA outpatient treatment reports dated from December 1980 to July 1983, and the letter from the appellant's employer dated September 1983. In July 1991, the appellant requested that VARO reopen the claim to service connection for a back disorder. In support of his claim, the appellant submitted VA outpatient treatment reports dated 1987 to 1991 which show treatment for back complaints in August and November 1991 but pertain mostly to psychiatric care, a duplicate service medical record dated September 1954, and sworn testimony along with a lay statement from the appellant's son. In October 1991, the appellant requested an increased disability evaluation for his service-connected psychiatric condition. In August 1992, a personal hearing was conducted at VARO. The appellant testified that he gave up his job as a longshoreman because of his back disorder and service-connected psychiatric condition. For the past 8 years, he reported working at a desk job, as a security guard, viewing a video monitor of a parking lot and observing for theft. The appellant argued that his psychiatric condition has worsened; he reportedly experienced a visual hallucination of a spirit, and hostility as a side-affect of his medication. The appellant also argued that his current back disorder was attributable to having been attacked by two men while guarding a train during basic training in service. He indicated continuous treatment in service, and treatment post- service by Dr. Romano. Dr. Romano was noted to be the treating physician for all the longshoremen where he worked. The appellant stated that Dr. Romano had died and his records were unavailable. The appellant reported an instance in which a VA orthopedic physician had declined to provide him with back pain medication, and had indicated to the appellant that his back problems were in his mind. The appellant also reported that he had injured his back in 1970 when he fell 15 feet in to a ship hole; he averred that his work as a longshoreman aggravated his back condition which had its onset in service. In October 1992, a VA psychiatric examination was conducted. By history, the appellant was hospitalized in service because of psychotic symptoms, and subsequently discharged in 1954. Since discharge, he has not been hospitalized for his mental disorder, but has been followed on an outpatient basis by the VA. He is currently being treated with Haldol, and has not always been compliant with medicines. After discharge, the appellant stated that he briefly worked as a truck driver, then as a longshoreman for 30 years, and most recently as a security officer for the past 8 or 9 years. He reportedly left the longshoreman's business because of his back condition. The appellant indicated that he has been married 40 years and has three children. The appellant complained of difficulty coping with the death of his daughter, some visual and auditory hallucinations involving spirits, confusion, and sleep disturbance. He noted that he continues to work despite the recent murder of his daughter, eats fairly well, attends church, and consumes a large amount of caffeine in the mornings to motivate himself for the day. The objective findings reflect that the appellant was oriented times three, very mild mannered, polite, calm, and non-threatening with appropriate affect. Clinical findings reflect that short term memory was intact, long term memory was fairly in tact, and that his thought process was goal directed; however, he was noted to be occasionally preoccupied with his daughters death. It was further noted the appellant's thought content showed religious delusions; the appellant was reported to believe that his thoughts and actions were, at times, controlled by spirits. Clinical findings indicted that the appellant's concentration appeared impaired, but not inappropriately so; also he seemed of average intelligence, with thinking, judgment, and insight fairly intact. The appellant was diagnosed with chronic mild paranoid schizophrenia, and moderate uncomplicated bereavement. II. Analysis The appellant is sseking to reopen his claim to service connection for a back disorder; he is also seeking a disability evaluation in excess of 50 percent for his service-connected psychiatric disorder. A. New and Material As indicated above, the appellant's claim for service connection for a back disorder was denied by the Board in June 1985. That decision is final. Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals (the Court), the Board may reopen and review a claim which has been previously denied by it only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means evidence which is not merely cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, leads to a reasonable possibility that the new evidence, when viewed in context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). A review of the record shows that the Board, in its prior decision, considered appellant's service medical records and post-service medical records including VA examination reports, a private outpatient treatment report dated August 1978, VA outpatient treatment reports dated from December 1980 to July 1983, and the letter from the appellant's employer dated September 1983. In support of his request to reopen the claim to service connection for a back disorder, the appellant submitted VA outpatient treatment reports dated 1987 to 1991 which show treatment for back complaints in August and November 1991 but pertain mostly to psychiatric care, a duplicate service medical record dated September 1954, and sworn testimony along with a lay statement from the appellant's son. After reviewing these most recent evidentiary submissions, the Board finds that the evidence, where new, is not material. As such, new and material evidence sufficient to reopen the claim to service connection for a back disorder has not been submitted. The sworn testimony of the appellant, the lay statement from the appellant's son, and the duplicate service medical record reflect that the appellant complained of back problems in service, sought treatment in service and many years after service, and that he allegedly has a current back disorder related to service. We note, however, that these evidentiary submissions and assertions tend to suggest some already well established points which were considered by the Board on the previous adjudication; as such, these evidentiary submissions are not new. With respect to the VA outpatient treatment reports dated August and November 1991, the Board finds that, while new, these medical reports are not material because there is no reasonable possibility that the medical reports, which cover treatment provided in 1991 and provide no connection between the appellant's back condition and his military service, would alter the outcome this case whether considered alone or in the context of the other evidence of record. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). Simply stated, the evidence does not tend to suggest a relationship between the development of a back disorder many years after service and his subjective back complaints in service. In view of the above, the undersigned concludes that the appellant has not submitted new and material evidence sufficient to reopen his claim for a back condition. B. Increased Rating The appellant is also seeking a disability evaluation in excess of the 50 percent rating currently assigned for his service- connected psychiatric disorder. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The schedular criteria provide that a psychotic disorder resulting in considerable impairment of social and industrial adaptability warrants a 50 disability rating; a 70 percent disability rating is warranted where there are active psychotic manifestations such as to produce severe impairment of social and industrial adaptability. A 10 percent rating is provided for mild impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9203 (1993). With the schedular criteria in mind, the Board will address the merits of the increased rating claim at issue. The medical evidence of record reflects that, while the appellant complains of some visual and auditory hallucinations, difficulty coping, confusion, and sleep disturbance, the overall level of impairment does not appear to be severe in degree. Testimony of the appellant along with VA psychiatric examination report dated October 1992 reflect the appellant has continued to work despite the recent murder of his daughter, eats fairly well, and attends church. Although the appellant reported some hostility at his hearing, the appellant was reported to be very mild mannered, polite, calm, and non-threatening with appropriate affect on VA psychiatric examination in October 1992; at that time it also noted that, while the appellant's thought content evidenced the religious delusions, objective findings indicated that the appellants thinking, judgment, and insight were fairly intact. Furthermore, the appellant reported a 40 year marriage with 3 children, almost continuous employment since discharge, and no recent periods of hospitalization. The Board acknowledges the appellant's belief that this psychiatric condition is productive of more than considerable social and industrial impairment. Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, on VA examination in October 1992, the appellant was diagnosed with chronic paranoid schizophrenia of mild severity, along with moderate uncomplicated bereavement, and the Board finds that the objective medical evidence of record more closely approximates the schedular criteria for no more than considerable social and industrial impairment. Upon consideration of the appellant's description of his symptoms coupled with the objective medical evidence of record, the Board concludes that the record supports the 50 percent disability evaluation for paranoid schizophrenia currently assigned. The disability picture does not more nearly approximate the criteria for a 70 percent schedular evaluation. The current degree of the appellant's impairment described on recent VA examination as mild, and found by the Board on consideration of the entire record and history of symptomatology to be less than severe, is insufficient to warrant a rating consistent for severe social and industrial impairment as contemplated by the Rating Schedule. Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the psychiatric disorder presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a back disorder not having been submitted, the benefit sought on appeal remains denied. A disability evaluation in excess of 50 percent for paranoid schizophrenia is denied. C.P. RUSSELL 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.