BVA9502305 DOCKET NO. 91-45 758 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for arthritis of multiple joints has been submitted. 2. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for a disorder of the left shoulder has been submitted. 3. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for a back disorder has been submitted. 4. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for anxiety reaction has been submitted. 5. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for chronic constipation due to hepatitis has been submitted. 6. Service connection for dizziness, claimed as secondary to service-connected tinnitus. 7. Service connection for headaches. 8. Service connection for bilateral pes planus. 9. An increased disability rating for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Army from April 1967 to April 1970 and from January 1971 to October 1977. In decisions in May 1979 and in September 1988, the Board of Veterans' Appeals (the Board) denied the appellant's claim for service connection for residuals of hepatitis. In a December 1985 rating decision, the Department of Veterans Affairs Regional Office in Jackson, Mississippi (VARO) denied the appellant service connection for generalized anxiety disorder, a back disorder, a left shoulder disorder, and degenerative arthritis of the cervical spine. The appellant was notified of that decision by letter from VARO in January 1986. He did not file an appeal within one year. In September 1986, VARO granted the appellant's claim for service connection for tinnitus. A 10 percent disability rating was assigned. In a December 1986 rating decision, VARO declined to grant the appellant service connection for dizziness, finding that dizziness was not a ratable disability. The appellant was notified of that decision in a letter from VARO dated January 1987. He did not file an appeal within one year. This appeal arose from a July 1989 rating decision which denied the appellant service connection for a number of claimed disorders. In a May 1991 rating decision, VARO denied the appellant's claim for service connection for headaches. In January 1993, the Board remanded this case so that certain issues presented on appeal could be clarified and so that a complete VA examination of the appellant could be scheduled. This was accomplished, and in September 1993 VARO issued a Supplemental Statement of the Case which denied the appellant's claim as to the issues listed above. The appellant's claims folder was thereupon returned to the Board, where it was received on January 24, 1994. On January 27, 1994, the appellant indicated that he wished to have the claims folder returned so that he could review it with his representative. Accordingly, the case was remanded by letter in April 1994. The case was returned to the Board once again in September 1994. As the Board noted on page 6 of its January 1993 remand, and as noted by the appellant's representative in his February 1994 informal presentation, it appears that the appellant is also seeking a permanent and total disability rating for pension purposes. That issue is again referred to VARO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the disorders for which he seeks service connection had their inception, directly or indirectly, during his military service. Implicit in the appellant's presentation is the contention that he has submitted new and material evidence with respect to issues which have been the subjects of previous VARO or Board decisions. With respect to service-connected tinnitus, the appellant contends that the disorder is of such severity that a disability rating in excess of 10 percent should be granted. 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 appellant's claims folder. 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 appellant has not submitted new and material evidence which would allow his claim for service connection for arthritis of multiple joints, a disorder of the left shoulder, a back disorder, anxiety reaction or residuals of hepatitis to be reopened. Further, it is the decision of the Board that service connection should be denied for dizziness, headaches and pes planus, because the preponderance of the evidence does not support the appellant's claim. Finally, it is the decision of the Board that an increased disability rating is not in order for tinnitus. FINDINGS OF FACT 1. In a December 1985 decision, VARO denied the appellant service connection for service connection for arthritis of multiple joints, a disorder of the left shoulder, a back disorder and anxiety reaction. 2. Evidence submitted by the appellant since the December 1985 decision is not new and material and does not serve to reopen the appellant's claim. 3. In May 1979 and in September 1988, the Board denied the appellant's claim for service connection for residuals of hepatitis. 4. Evidence submitted by and on behalf of the appellant since the September 1988 decision of the Board is either reiterative of evidence which was of record when the prior final denial was entered or does not serve to reopen the appellant's claim. 5. There is no medical evidence of record which links the appellant's reported dizziness to his service-connected tinnitus. 6. The appellant reportedly did not experience headaches during military service or for a number of years thereafter. 7. The appellant reportedly did not experience pes planus during military service or for a number of years thereafter. 8. The appellant's service-connected tinnitus is currently manifested by intermittent noise in both ears. CONCLUSIONS OF LAW 1. The December 1985 VARO decision which denied service connection for arthritis of multiple joints, a disorder of the left shoulder, a back disorder and anxiety reaction is final. Evidence submitted since the December 1985 decision is not new and material and the appellant's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302, 20.1103 (1993). 2. The prior Board decisions which denied the appellant service connection for residuals of hepatitis are final; the evidence submitted on behalf of the appellant with respect to service connection for residuals of hepatitis since the Board's decision in September 1988 is not new and material and does not allow his claim for service connection for residuals of hepatitis to be reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156, 20.1100 (1993). 3. The appellant's reported dizziness is not proximately due to or the result of his service-connected tinnitus. 38 C.F.R. § 3.310(a) (1993). 4. Headaches were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). 5. Pes planus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). 6. The appellant's service-connected tinnitus is no more than 10 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.87a, Diagnostic Code 6260 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for a variety of claimed disorders on either a direct or a secondary basis. He is also seeking an increased disability rating for service-connected tinnitus. 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, it is believed that this case has been adequately developed for appellate purposes by VARO and that the Board may therefore proceed to a disposition on the merits. In the interest of clarity, the Board will separately discuss the issues presented in this appeal. In general, under pertinent law and VA regulations, service connection may be granted if symptomatology attributable to disease or injury appeared during service or, in cases of chronic disease such as arthritis, to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). It is not necessary to have a diagnosis of disease during service, but it is necessary to have manifestations sufficient to establish that the disease was present. 38 C.F.R. § 3.303(d) (1993). 1. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for arthritis of multiple joints has been submitted. 2. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for a disorder of the left shoulder has been submitted. 3. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for a back disorder has been submitted. 4. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for anxiety reaction has been submitted. The appellant is seeking service connection for degenerative arthritis of the cervical spine (with left shoulder pain), lumbar spine, and knee; for a disorder of the left shoulder; for a back disorder; and for anxiety. The Board wishes to point out, as will be discussed in greater detail below, that several of these claimed disorders overlap, and all were the subject of an unfavorable decision of VARO in December 1985. As indicated in the Introduction, VARO denied the appellant claim for service connection for these claimed disabilities in a December 1985 rating decision. He was duly notified of that decision by letter in January 1986 but he did not file a substantive appeal within one year. The decision of VARO is considered to be final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a) (1991); 38 C.F.R. §§ 20.302, 20.1103 (1993). Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals, the Board may reopen and review a claim which has been previously denied 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); and 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 the context of all of the evidence of record, would change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178 (1991). The "old" evidence The appellant's service medical records reveal that in April 1968, he was requested medical treatment due to a painful left knee. The impression was left knee strain. No treatment was prescribed and he was returned to duty. In September 1968, the appellant claimed that he had twisted his left knee. Physical examination produced no objective findings. The appellant complained of pain in the region of the back and the left scapula in October 1969. The impression was muscle spasm. Heat treatment was prescribed. He complained of back pain in March 1970. He complained of left knee pain in October 1971. No abnormality was found. The impression was "mild traumatic arthritis". He reported a recurrent sore back in April 1977. Physical examination was normal. The assessment was musculoskeletal pain. In May 1977, he reported a "catch" in his back between the shoulder blades. The assessment again was musculoskeletal pain. In a report of medical history which accompanied his August 1977 separation physical examination, he reported experiencing back aches and nervous trouble. The physical examination was negative. In October 1968, the appellant sought psychiatric treatment after he had the urge to kill another man. On examination, he was "obviously depressed". The examiner's impression was agitated depression - labile fatigue. The appellant was placed under sedation and bed rest. He later attempted to leave the ward and became hostile and belligerent. He was sedated more deeply, first with Librium, then with Thorazine. He was returned to duty three days later. There is no further report of psychiatric symptomatology. In a report of medical history which accompanied his August 1977 separation physical examination, he reported experiencing "nervous trouble" in the past. The appellant received a complete physical examination at a VA facility in February 1978. He did not refer to musculoskeletal or psychiatric complaints, and the examination was completely normal with respect to the musculoskeletal system. No neuropsychiatric disorder was found. Another VA physical examination of the appellant was completed in October 1985. He complained of left neck and shoulder pain. X- rays revealed degenerative disc disease at C4-5. There was no abnormality of the left shoulder identified. Examination of the low back and all other joints was normal. The diagnosis was degenerative cervical arthritis with pain radiation. The appellant was also examined by a specialist in psychiatry. The appellant reported insomnia, starting in 1982. He reported a number of other complaints, such as dizziness, a feeling that someone was strangling him, memory loss, and difficulty moving his right hand at times. The examiner's impression was generalized anxiety disorder, with an onset of approximately 1982. The examiner commented that the appellant's anxiety disorder was manifested by "many physical symptoms". The December 1985 VARO decision In essence, VARO denied the appellant's claim because chronic musculoskeletal problems, including degenerative arthritis, were not demonstrated during service or for a number of years thereafter. Similarly, VARO found that the appellant did not have a chronic psychiatric disorder in service or for a number of years thereafter. Although not stated explicitly, it appears to have been VARO's finding that the various episodes of musculoskeletal problems, as well as the episode of nervous exhaustion, during service were acute and transitory and resolved without permanent consequences. The additional evidence Of record is a report of a May 1989 VA examination of the appellant. The appellant had a long list of physical and psychiatric complaints, including pain and stiffness of multiple joints, stress, anxiety and insomnia. During a neurological examination, the appellant described many aches, pains, bumps and tight muscles. The examiner was unable to find any organic basis for these complaints. The impression was: normal neurologic examination in an individual with anxiety and numerous somatic complaints. A psychiatric examination resulted in a diagnosis of anxiety disorder. An orthopedic examiner evaluated the appellant's complaints of pain and stiffness of numerous joints. X-rays were normal, with the exception of mild straightening of the cervical spine. In response to the Board's January 1993 remand, a VA examination of the appellant, with specialist consultations, was completed in February 1993. The appellant had fewer physical complaints than during his May 1989 examination. The same orthopedic specialist who examined the appellant in 1989 was the orthopedic examiner. In essence, the orthopedic examiner stated that he had nothing to add to his report in May 1989, when he noted numerous musculoskeletal complaints on the part of the appellant with no evidence of arthritis on X-rays. The appellant told the psychiatric examiner that his anxiety was much better. On examination, no significant symptoms of an anxiety disorder were identified. The examiner commented that the appellant's anxiety appeared to have resolved. Also of record is a November 1993 statement of the appellant which thoroughly discussed his contentions. In essence, he continued to state that he believed that the various aches and pains which he experienced had their inception during his military service. He denied any psychiatric problems. Analysis After having reviewed the additional evidence, the Board has concluded that the recent medical reports, although new, are not material in that they do not lead to a reasonable possibility, when viewed in the context of all of the evidence of record, of a change in the outcome of the case. On the contrary, the recent medical evidence tends to lead to the conclusion that the appellant does not have arthritis of multiple joints or other musculoskeletal pathology, nor does he presently have an anxiety disorder. The recent medical evidence, in short, does not tend to link the musculoskeletal and psychiatric symptomatology reported at times in the past by the appellant to his military service. Accordingly, the appellant's claim will not be reopened as to these issues, and the benefits sought on appeal thus remain denied. 5. Whether new and material evidence sufficient to reopen the appellant's claim for service connection for chronic constipation due to hepatitis has been submitted. In the January 1993 remand, the Board explained the distinction between symptoms and disabilities. In essence, a symptom, such as constipation, is a manifestation of a disability, but is not itself a separate disability. In effect, in seeking service connection chronic constipation, the appellant is in fact seeking service connection for infectious hepatitis. This issue will therefore be treated as a claim for service connection for hepatitis. As was noted in the Introduction, service connection for hepatitis was denied by the Board in decisions in May 1979 and in September 1988. The Board's decisions are considered to be final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1993). Under pertinent law and regulations, as interpreted by the United States Court of Veterans Appeals, 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 (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, must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all of the evidence of record, would change the outcome of the case. Cox v. Brown, 5 Vet.App. 95,98 (1993). The "old" evidence Service medical records indicate that the appellant was hospitalized for treatment of infectious hepatitis in Vietnam in December 1968 and January 1969. His liver function studies gradually returned to normal, and he was returned to duty. The report of his January 1971 separation physical examination contained the notation "complete recovery". In a July 1974 service medical record, the appellant was reported to be asymptomatic. In September 1975, the appellant reported intermittent pains in his right upper quadrant, as well as some discoloration of his urine. No residuals of hepatitis were found. The impression was hepatitis by history. In a report of medical history which accompanied his August 1977 separation physical examination, the appellant stated "I...am very concerned about a possible relapse of infectious hepatitis." Physical examination was negative. During the appellant's February 1978 VA physical examination, he reported "pressure" in the area of his liver. With respect to the episode of infectious hepatitis during service, no sequelae or complications were noted. The examiner's diagnosis was history of infectious hepatitis. The May 1979 and September 1988 Board decisions The Board, in its May 1979 decision, concluded that the episode of infectious hepatitis in service was acute and transitory in nature. The Board pointed out that service connection may not be granted for diseases which are no longer active without residuals. In its September 1988 decision, the Board again stated that the bout with hepatitis during service was acute and transitory and resolved without chronic residuals. No new factual basis was found for reopening the appellant's claim. The additional evidence During the May 1989 VA examination, the appellant complained of constipation, as well as related symptoms such as bloating and gas. During the February 1993 VA examination, the appellant told one examiner that his previous complaints of constipation had resolved after he had learned that he was a diabetic and had altered his eating habits. He did complain of being occasionally tired and sometimes feeling a pain in his right side, which he related to hepatitis. The examiner's diagnosis was history of hepatitis. Analysis After having carefully evaluated the additional evidence, the Board has come to the conclusion that such evidence is neither new nor material. There is still no medical evidence which demonstrates that the appellant is suffering any residuals of the acute episode of hepatitis which he experienced in Vietnam. As in the past, the appellant has continued to ascribe certain physical complaints, such as constipation, to residuals of hepatitis. He further stated to an examiner in February 1993 that his chronic constipation ceased after he altered his eating habits. Based on the record, the Board has concluded that the appellant's claim should not be reopened. The benefit sought on appeal, therefore, remains denied. 6. Service connection for dizziness, claimed as secondary to tinnitus. The appellant is seeking service connection for dizziness, which he contends is secondary to service-connected tinnitus. Under the pertinent VA regulation, service connection for a disability may be granted if such disability is found to be proximately due to or is the result of a service-connected disability. 38 C.F.R. § 3.310 (1993). As noted in the Introduction, in a December 1986 rating decision, VARO declined to grant the appellant service connection for dizziness, finding that dizziness was not a ratable disability. The Board does not disagree with VARO's position. However, since the appellant is now requesting service connection for dizziness as a distinct disorder secondary to service-connected tinnitus, and that issue has been developed for appeal, the Board believes that this issue must be disposed of. It is noted that there is no finality as to the December 1986 VARO decision with respect to the new issue of secondary service connection which is presented and the Board may proceed to a de novo review of the evidence. In the report of medical history which was taken in conjunction the appellant's separation physical examination in August 1977, he responded "no" to the question concerning dizziness. The appellant complained of dizziness in connection with psychiatric symptomatology during an October 1985 VA psychiatric examination, and in connection with hearing loss and tinnitus during an August 1986 ENT examination and an October 1986 neurological examination. No organic pathology was identified. Subsequent medical evidence included the report of the May 1989 VA neurological and psychiatric examinations, during which the appellant complained of dizziness, which reportedly increased when he entered a public building. During the February 1993 VA examination, the appellant told the psychiatric examiner that his feelings of dizziness had lessened since his newly discovered diabetes had been treated. In his November 1993 statement, the appellant reported that he had experienced some improvement in his dizziness after recent sinus surgery. He also noted that there was a little improvement in the dizziness when he ceased doing work involving his left shoulder. Analysis Interestingly, the evidence makes clear that at various times recently the appellant has indicated that his reported dizziness is related in some way to stress, diabetes, sinus problems and musculoskeletal problems, in addition to his service-connected ear problems. He has presented no medical evidence in support of any of these seemingly contradictory positions. However, whatever may be his position, the Board cannot entertain lay speculation on medical matters. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The medical evidence on record simply does not implicate service-connected tinnitus as a factor in the appellant's reported dizziness. Based on the evidence of record, service connection for dizziness secondary to tinnitus is denied. 7. Service connection for headaches. There is no record of complaints of headaches during service or for a number of years thereafter. In the report of medical history which he completed in connection with his August 1977 separation physical examination, the appellant answered "no" to the question concerning frequent or severe headaches. The appellant first complained of headaches during an October 1986 VA physical examination. A CT scan of the head was normal, as was a neurological examination. He complained of severe headaches during the May 1989 neurological examination. The examination was normal, and the headaches were characterized by the examiner as a somatic complaint. During the February 1993 VA physical examination, the appellant reported just occasional headaches, which were controlled with Excedrin. In his November 1993 statement, the appellant indicated that his headaches cease when he stops using his left shoulder. Although the appellant has contended that this headaches are in some way related to his military service, he has presented no medical evidence in support of that position. The Board cannot entertain lay speculation on medical matters. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The appellant's headaches reportedly began a number of years after service, and there is no objective evidence of record which connects the appellant's military service and his reported headaches. The preponderance of the evidence does not support a finding in the appellant's favor on this issue. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Service connection is therefore denied. 8. Service connection for bilateral pes planus. The appellant's service medical records made no reference to pes planus. In the report of medical history which he completed in connection with his August 1977 separation physical examination, the appellant answered "no" to the question concerning foot trouble. The appellant first complained of flat feet during the October 1985 VA examination. The appellant again complained of flat feet during the May 1989 VA orthopedic examination. The examiner's diagnosis was bilateral pes planus with metatarsalgia. In his November 1993 statement, the appellant in essence contended that he had foot problems in service and that his flat feet had their inception during service. These is no objective evidence of record which indicates that the appellant had flat feet in service. The Board has considered the appellant's statement to the contrary, but it is believed that such statement is outweighed by the service medical records, which made no mention of flat feet, and in particular by the appellant's statement when he left service in 1977 to the effect that he did not experience foot trouble. The preponderance of the evidence does not support a finding in the appellant's favor on this issue. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Service connection is therefore denied. 9. An increased disability rating for tinnitus, currently evaluated as 10 percent disabling. In evaluating the appellant's request for increased ratings, 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 (1991). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1993). The Board will first briefly review the appellant' relevant medical history. 38 C.F.R. §§ 4.1, 4.41 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). Mild bilateral hearing loss was noted during military service. During an August 1986 VA ENT examination, the appellant complained of hearing loss, pain and tinnitus, which he related to noise exposure during service. The examiner believed that the appellant had true tinnitus. During a May 1989 VA ENT examination, the appellant reported increasing tinnitus, which was worse on the left than on the right. The examiner's diagnosis was tinnitus secondary to noise exposure. During the February 1993 VA examination, the appellant reported only intermittent tinnitus. In his November 1993 statement, the appellant stated that he often experienced ear noise. The schedular criteria call for a 10 percent disability rating for persistent tinnitus. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1993). In evaluating the appellant's request for an increased disability rating, the Board notes that 10 percent is ordinarily the maximum allowed for tinnitus. An extraschedular rating has therefore been considered. Such a rating is authorized by VA regulations "to accord justice". 38 C.F.R. § 3.321(b) (1993). In order for an extraschedular rating to be granted, an exceptional or unusual disability picture must be presented. Factors which must be considered include marked interference with employment or frequent periods of hospitalization. Id. In this case, the Board has been unable to identify any exceptional or unusual disability picture. Indeed, according to his most recent statements, it appears that the appellant only suffers from intermittent tinnitus. Based on the pertinent evidence of record, the Board does not believe that an extraschedular rating is warranted. ORDER New and material evidence sufficient to reopen the appellant's claim for service connection for arthritis of multiple joints not having been submitted, the benefit sought on appeal remains denied. New and material evidence sufficient to reopen the appellant's claim for service connection for a disorder of the left shoulder not having been submitted, the benefit sought on appeal remains denied. New and material evidence sufficient to reopen the appellant's claim for service connection for a back disorder not having been submitted, the benefit sought on appeal remains denied. New and material evidence sufficient to reopen the appellant's claim for service connection for anxiety reaction not having been submitted, the benefit sought on appeal remains denied. New and material evidence sufficient to reopen the appellant's claim for service connection for residuals of hepatitis not having been submitted, the benefit sought on appeal remains denied. Service connection for dizziness, claimed as secondary to service-connected tinnitus, is denied. Service connection for headaches is denied. Service connection for bilateral pes planus is denied. An increased disability rating for tinnitus is denied. KENNETH R. ANDREWS, JR. 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.