judge_norm: C TRUEBA

condition: back

text:
Citation Nr: 0908000
Decision Date: 03/04/09    Archive Date: 03/12/09

DOCKET NO.  02-08 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York

THE ISSUES

1.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a low
back disorder, and if so, entitlement to service connection
for same.

2.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
residuals of a left great toe fracture, and if so,
entitlement to service connection for same.

3.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
deviated nasal septum, and if so, entitlement to service
connection for same.

4.  Entitlement to an effective date earlier than April 23,
1992, for service connection for a left knee disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Purdum, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1965 to
September 1967.

This matter is before the Board of Veterans' Appeals (Board)
from rating decisions by Department of Veterans Affairs (VA)
Regional Offices (RO) and Appeals Management Centers (AMC).
By an August 1981 rating decision, the New York, New York RO
denied the veteran's claims of entitlement to service
connection for a low back disorder, residuals of a left great
toe fracture, and a deviated nasal septum.  By a January 1983
rating decision, the New York, New York RO denied the
veteran's claims of entitlement to service connection for
back, knee, and toe conditions.

By a September 1999 rating decision, the New York, New York
RO established service connection for a left knee disorder,
evaluated as 10 percent disabling effective September 30,
1992.  By a February 2006 rating decision of the Huntington,
West Virginia AMC, an earlier effective date, April 23, 1992,
for the veteran's service-connected left knee disorder was
established.

The Board most recently remanded these matters to the RO for
further action in December 2006.

The Board notes that the March 2004 Board remand and the
December 2006 Board remand both referred the veteran's
unadjudicated August 2001 claims of entitlement to service
connection for a liver condition, a kidney condition, and
Type II diabetes as a result of exposure to Agent Orange.
From a review of the records currently before the Board, it
appears that the RO has not adjudicated such and the issues
are referred back to the RO for appropriate action.

FINDINGS OF FACT

1.  The veteran's claim of entitlement to service connection
for a low back disorder was last denied in a January 1983
rating decision.  The veteran was notified of that decision
but failed to perfect a timely appeal.  The decision became
final.

2.  The evidence as to the veteran's claim of entitlement to
service connection for a low back disorder received since the
last final denial in January 1983 is new, in that it is not
either cumulative nor redundant of the evidence of record at
the time of the last prior final denial, and it is material
because it bears directly and substantially upon the specific
matter under consideration, and which by itself, or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.

3.  A low back disorder is attributable to the veteran's
period of service.

4.  The veteran's claim of entitlement to service connection
for residuals of a left great toe fracture was last denied in
a January 1983 rating decision.  The veteran was notified of
that decision but failed to perfect a timely appeal.  The
decision became final.

5.  The evidence as to the veteran's claim of entitlement to
service connection for residuals of a left great toe fracture
received since the last final denial in January 1983 is new,
in that it is not either cumulative nor redundant of the
evidence of record at the time of the last prior final
denial, and it is material because it bears directly and
substantially upon the specific matter under consideration,
and which by itself, or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.

6.  Residuals of a left great toe fracture are attributable
to the veteran's period of service.

7.  The veteran's claim of entitlement to service connection
for a deviated nasal septum was previously denied in an
August 1981 rating decision.  The veteran was notified of
that decision but failed to perfect a timely appeal.  The
decision became final.

8.  The evidence as to the veteran's claim of entitlement to
service connection for a deviated  nasal septum received
since the last final denial in August 1981 is new, in that it
is not either cumulative nor redundant of the evidence of
record at the time of the last prior final denial, and it is
material because it bears directly and substantially upon the
specific matter under consideration, and which by itself, or
in connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.

9.  A deviated nasal septum is attributable to the veteran's
period of service.

10.  Evidence of record indicates that a formal claim of
entitlement to service connection for a left knee condition,
dated April 23, 1992, was filed at the RO.

11.  Entitlement to service connection arose on January 4,
1999, the date upon which medical evidence indicated a nexus
between the veteran's in-service knee injury and his current
left knee condition.

CONCLUSIONS OF LAW

1.  The January 1983 rating decision that denied the
veteran's claim of entitlement to service connection for a
low back disorder is final.  38 U.S.C.A. � 7105 (West 2002);
38 C.F.R. �� 3.104(a), 3.160(d), 20.302, 20.1103 (2008).

2.  New and material evidence has been received to reopen the
veteran's previously denied claim of entitlement to service
connection for a low back disorder.  38 U.S.C.A. � 5108 (West
2002); 38 C.F.R. � 3.156 (2008).

3.  A low back disorder was incurred in or aggravated by
active service.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. �� 3.102,
3.159, 3.303, 3.304 (2008).

4.  The January 1983 rating decision that denied the
veteran's claim of entitlement to service connection for
residuals of a left great toe fracture is final.  38 U.S.C.A.
� 7105 (West 2002); 38 C.F.R. �� 3.104(a), 3.160(d), 20.302,
20.1103 (2008).

5.  New and material evidence has been received to reopen the
veteran's previously denied claim of entitlement to service
connection for residuals of a left great toe fracture.  38
U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2008).

6.  Residuals of a left great toe fracture were incurred in
or aggravated by active service.  38 U.S.C.A. �� 1101, 1110,
1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38
C.F.R. �� 3.102, 3.159, 3.303, 3.304 (2008).

7.  The August 1981 rating decision that denied the veteran's
claim of entitlement to service connection for a deviated
nasal septum is final.  38 U.S.C.A. � 7105 (West 2002); 38
C.F.R. �� 3.104(a), 3.160(d), 20.302, 20.1103 (2008).

8.  New and material evidence has been received to reopen the
veteran's previously denied claim of entitlement to service
connection for a deviated nasal septum.  38 U.S.C.A. � 5108
(West 2002); 38 C.F.R. � 3.156 (2008).

9.  A deviated nasal septum was incurred in or aggravated by
active service.  38 U.S.C.A. �� 1101, 1110, 1111, 1112, 1113,
1153, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R.
�� 3.102, 3.159, 3.303, 3.304, 3.306 (2008).

10.  The criteria for an effective date earlier than April
23, 1992, for service connection for a left knee disorder,
have not been met.  38 U.S.C.A. �� 5103, 5103A, 5107(b),
5110(b)(1) (West 2002 & Supp. 2007); 38 C.F.R. ��
3.400(b)(1), 3.400(o)(2), 4.130 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist the Appellant

In light of the favorable disposition as to the veteran's
claims of entitlement to service connection for a low back
disorder, residuals of a left great toe fracture, and a
deviated septum, the Board finds that a discussion as to
whether VA's duties to notify and assist the veteran have
been satisfied is not required.  The Board finds that no
further notification or assistance is necessary, and that
deciding the appeal, as to the veteran's claims of
entitlement to service connection for a low back disorder,
residuals of a left great toe fracture, and a deviated nasal
septum, at this time is not prejudicial to the veteran.

As to the veteran's claim of entitlement to an effective date
earlier than April 23, 1992 for service connection for a left
knee condition, the Board notes that the veteran's claim for
same arises from his disagreement with the effective date
assigned following the grant of service connection.  Once
service connection is granted, the claim is substantiated,
additional notice is not required and any defect in the
notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d
1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112
(2007).  Accordingly, the Board finds that VA satisfied its
duties to notify the veteran in this case, as to his claim of
entitlement to an effective date earlier than April 23, 1992
for service connection for a left knee condition.

New and Material Evidence

Service connection for a low back disorder and residuals of a
left great toe fracture were last denied in a January 1983
rating decision, and service connection for a deviated nasal
septum was last denied in an August 1981 rating decision.
Although the RO declined to reopen the veteran's April 1992
claims of entitlement to service connection for a low back
disorder, residuals of a left great toe fracture, and a
deviated nasal septum, the Board must consider the question
of whether new and material evidence has been received
because it goes to the Board's jurisdiction to reach the
underlying claims and adjudicate the claims de novo.  Jackson
v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds
that no such evidence has been offered, that is where the
analysis must end, and what the RO may have determined in
that regard is irrelevant.  Barnet v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).

The claims of entitlement to service connection for a low
back disorder, residuals of a left great toe fracture, and a
deviated nasal septum may be reopened if new and material
evidence is submitted.  Manio v. Derwinski, 1 Vet. App. 140
(1991).  The veteran filed this application to reopen his
claim in April 1992.

Under the applicable provisions, new evidence means existing
evidence not previously submitted to agency decision makers.
Material evidence means evidence that bears directly and
substantially upon the specific matter under consideration,
and which by itself, or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the
claims.  New and material evidence can be neither cumulative
nor redundant of the evidence of record at the time of the
last prior final denial of the claim sought to be reopened.
38 C.F.R. � 3.156(a) (2000).

The definition of new and material evidence has been changed,
but the latest definition only applies to applications to
reopen a finally decided claim received by VA on or after
August 29, 2001.  Thus, the change does not apply to this
case because the claim to reopen was received before that
date.  66 Fed. Reg. 45,620 (Aug. 29, 2001); 38 C.F.R.  �
3.156(a) (2005).  In determining whether evidence is new and
material, the credibility of the new evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).

New evidence is sufficient to reopen a claim if it
contributes to a more complete picture of the circumstances
surrounding the origin of a veteran's disability, even where
it may not convince the Board to grant the claim.  Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998).

The evidence before VA at the time of the prior final
decisions in August 1981 and January 1983 consisted of the
veteran's claim of entitlement to service connection, service
treatment records, post-service treatment records dated from
January 1981 to February 1981, report of VA neuropsychiatric
evaluation dated in June 1981, and report of VA examination
dated in June 1981.

The veteran applied to reopen his claims of entitlement to
service connection for a low back disorder, residuals of a
left great toe fracture, and a deviated nasal septum in April
1992.  Newly received evidence includes:  additional service
treatment records; The Seabag newspaper dated on January 20,
1966; post-service VA treatment records dated from January
1983 to November 1992, July 1995, February 1996 to June 1997,
and November 2004 to January 2006; transcript of a March 1994
hearing before a Decision Review Officer; record of August
1997 VA examination; March 2000 statement from fellow service
member; May 2001 and September 2004 x-ray examination
results; private treatment records dated in May 2001; June
2002 statement from a neighbor; September 2004 x-ray
examination results; January 2008 letter from a private
physician; February 2008 letter from a private physician;
March 2008 letter from a private physician; undated statement
from the veteran's sister; portions of the veteran's
application for Social Security disability benefits; and the
veteran's own statements.

The Board notes that the veteran has filed additional
evidence that was not accompanied by a waiver of initial RO
consideration.  However, in light of the favorable
disposition of the veteran's claims of entitlement to service
connection for a low back disorder, residuals of a left great
toe fracture, and a deviated septum, the Board finds that the
veteran is not prejudiced by the Board's consideration of the
additional evidence in the adjudication of this appeal.

Low Back Disorder

At the time of the August 1981 rating decision, the RO found
that there was no evidence of complaint, treatment, or
diagnosis of a back condition during the veteran's period of
service.  The veteran's claim of entitlement to service
connection for a low back disorder was denied at that time.
The veteran's claim for same was also denied, most recently,
in a January 1983 rating decision.

The newly received evidence indicates that the veteran was
hospitalized for two days in July 1966 for lower back pain.
At that time, the veteran's service treatment records
indicate that he was diagnosed with acute muscle strain,
right lumbar area.  Additional newly received evidence, a
February 2008 letter from the veteran's private physician,
indicates that the veteran is currently diagnosed with lower
back degenerative changes, status post an injury while
working in the Navy.  The private physician opined that it is
more likely that the veteran's current injuries are related
to the problem that the veteran experienced while he was in
service.  An additional letter from a different private
physician, dated in March 2008, indicates that the physician
opined that the veteran's severe lower back degenerative
changes are consistent with long-standing back complaints
stemming from an injury in the Navy.  The physician further
opined that the veteran's back complaints originated from the
injury in service and that his current complaints are
causally related to same.

The Board finds that the evidence as to the veteran's claim
of entitlement to service connection for a low back disorder
received since the last final decision in January 1983 is new
in that it is neither cumulative nor redundant of the
evidence of record at the time of the last prior final
denial.

The Board also finds that the evidence as to the veteran's
claim of entitlement to service connection for a low back
disorder received since the last final decision in January
1983 is material.  The RO previously found that there was no
evidence of complaint, treatment, or diagnosis of a back
condition during the veteran's period of military service.
Thus, the July 1966 service treatment records indicating
acute muscle strain, right lumbar area, and the February and
March 2008 letters of private physicians opining as to a
relationship between the veteran's current lower back
disorder and an in-service event or injury bear directly and
substantially upon the specific matter under consideration,
and which by itself, or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. � 3.303 (2008).

In this case, the veteran has submitted medical evidence as
to a complaint, treatment, or diagnosis of a lower back
disorder during his period of military service.  The veteran
has also submitted medical evidence as to a relationship
between his current lower back disorder and an in-service
event or injury.  Accordingly, new and material evidence as
to the veteran's claim of entitlement to service connection
for a low back disorder has been received, and such claim is
reopened.

Residuals of a Left Great Toe Fracture

At the time of the August 1981 rating decision, the RO found
that there was no evidence of complaint, treatment, or
diagnosis of a fracture of the left great toe during the
veteran's period of service.  The veteran's claim of
entitlement to service connection for residuals of a left
great toe fracture was denied at that time.  The veteran's
claim for same was also denied, most recently, in a January
1983 rating decision.

The newly received evidence, specifically the statements from
a fellow service member, neighbor, the veteran's sister, and
the veteran's himself; indicate that the veteran incurred a
fractured left great toe during his period of military
service.  Additional newly received evidence is a January
2008 letter from a private physician stating that in his
opinion, the veteran has a permanent disability, associated
with hallux interphalangeal joint arthritis of the left foot,
and causally related to the injury sustained in service.

The Board finds that the evidence as to the veteran's claim
of entitlement to service connection for residuals of a left
great toe fracture received since the last final decision in
January 1983 is new in that it is neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial.

The Board also finds that the evidence as to the veteran's
claim of entitlement to service connection for residuals of a
left great toe fracture received since the last final
decision in January 1983 is material.  The RO previously
found that there was no evidence of complaint, treatment, or
diagnosis of a fracture of the left great toe during the
veteran's period of military service.  Thus, evidence, in the
form of statements from a fellow service member, a neighbor,
the veteran's sister, and the veteran, indicating the
incurrence of a fracture of the left great toe during
service, and the January 2008 letter of a private physician
opining as to a relationship between the veteran's residuals
of a left great toe fracture and an in-service event or
injury bears directly and substantially upon the specific
matter under consideration, and which by itself, or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim.  38 C.F.R. � 3.303 (2008).

In this case, the veteran has submitted evidence as to the
incurrence of a fracture of the left great toe during his
period of military service.  The veteran has also submitted
medical evidence as to a relationship between his residuals
of a left great toe fracture and an in-service event or
injury.  Accordingly, new and material evidence as to the
veteran's claim of entitlement to service connection for
residuals of a left great toe fracture has been received, and
such claim is reopened.

Deviated Nasal Septum

At the time of the August 1981 rating decision, the RO found
that because the examination conducted for the purpose of the
veteran's separation from service indicated a deviated
septum, existing prior to service, such condition was not
incurred during the veteran's period of military service.
The veteran's claim of entitlement to service connection for
a deviated nasal septum was denied.

The newly received evidence indicates that the veteran
participated in recreational weight-lifting during service,
participated in boxing competitions during service, reported
a history of nasal trauma during service, and underwent
septoplasty to correct a deviated septum in July 1995.
Additional newly received evidence is a January 2008 letter
from a private physician stating that, based upon review of
the veteran's entrance and separation examinations, it
appears that the veteran's deviated nasal septum was incurred
during his period of service.

The Board finds that the evidence as to the veteran's claim
of entitlement to service connection for a deviated nasal
septum received since the last final decision in August 1981
is new in that it is neither cumulative nor redundant of the
evidence of record at the time of the last prior final
denial.

The Board also finds that the evidence as to the veteran's
claim of entitlement to service connection for a deviated
nasal septum received since the last final decision in August
1981 is material.  The newly received evidence, in the form
of the veteran's statements alleging participation in boxing
competitions and in-service nasal trauma, as well as the
January 2008 letter indicating that the veteran's deviated
nasal septum occurred during service, bears directly and
substantially upon the specific matter under consideration,
and which by itself, or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. � 3.303 (2008).

In this case, the veteran has submitted evidence as to the
incurrence of an in-service nasal trauma.  Accordingly, new
and material evidence as to the veteran's claim of
entitlement to service connection for a deviated nasal septum
has been received, and such claim is reopened.

Service Connection

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303, 3.304
(2008).

Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000). Service connection for some disorders will be
rebuttably presumed if manifested to a compensable degree
within one year following active service.  The veteran's low
back disorder, residuals of a left great toe fracture, or
deviated nasal septum however, are not disabilities for which
service connection may be granted on a presumptive basis.  38
U.S.C.A. � 1110; 38 C.F.R. �� 3.307, 3.309 (2008).

Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.

For the showing of chronic disease in service, there must be
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time.  If chronicity in service is not
established, evidence of continuity of symptoms after
discharge is required to support the claim.  38 C.F.R. �
3.303(b) (2008).

Following the point at which it is determined that all
relevant evidence has been obtained, it is the Board's
principal responsibility to assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole.  Owens v. Brown, 7 Vet. App. 429 (1995); Elkins
v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober,
125 F. 3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet.
App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993).  In
determining whether documents submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498
(1995).

Low Back Disorder

The veteran asserts that his low back disorder is related to
his period of active service.  Specifically, the veteran
contends that he lifted a garbage can full of grease and
experienced severe low back pain in July 1966, and such in-
service injury is related to his current low back disorder.

Report of Medical Examination, dated in September 1965, and
conducted for the purpose of entry into service, indicates
that no abnormality to the spine, or other musculoskeletal
system, was noted.  Report of Medical History, also dated in
September 1965, and completed by the veteran, is silent for
any arthritis or rheumatism, or bone, joint, or other
deformity.

Record of treatment dated in July 1966 indicates that the
veteran reported severe right low back pain, subsequent to
lifting a garbage can.  Physical examination revealed normal
results, except for marked right lumbar paraspinous muscle
spasm and marked limitation of motion of the lumbar area,
secondary to pain.  The veteran was diagnosed with acute
muscle strain, right lumbar area, and treated for two days in
the hospital with medication and hydroculator pads.

Report of Medical Examination, dated in September 1967, and
conducted for the purpose of separation from service,
indicates that no abnormality to the spine, or other
musculoskeletal system, was noted.

As there is no evidence of record describing continued
symptomology of a low back disorder dated after July 1966, it
appears that chronicity in service is not established in this
case.  As chronicity in service has not been established, a
showing of continuity of symptoms after discharge is required
to support the veteran's claim of entitlement to service
connection for a low back disorder.  38 C.F.R. � 3.303(b).

The first post-service clinical evidence demonstrating
symptomology of a low back disorder is dated in September
1992, approximately 25 years after separation from service.
VA treatment records dated at that time indicate that the
veteran reported a history of low back pain since 1986.

VA examination dated in August 1997 indicates that the
veteran complained of pain to the low back.

VA treatment records indicate that the veteran underwent x-
ray examination for his low back in September 2004.  Results
of such examination indicated mild straightening of the
lumbar spine, with some larger osteophytes seen throughout
the lower thoracic and upper lumbar spine, without narrowing
of the intervertebral vertebral disk spaces representing
diffuse idiopathic skeletal hyperostosis.  Some narrowing of
the veteran's lumbar spine at L4-5 was noted.

VA treatment records dated in November 2004 indicate that the
veteran reported a history of low back pain in conjunction
with treatment for his left knee.
Record of private treatment dated in February 2008 indicates
that the veteran presented with a history of a low back
injury during his period of service.  The physician reported
that the veteran provided him with service treatment records
dated in July 1966 describing a low back injury and
subsequent treatment.  Physical examination revealed that the
veteran was able to bend forward minimally, and hyperextend
the lumbar spine minimally.  The veteran was diagnosed with
lower back degenerative changes, status post an injury while
working in the Navy.  The physician opined that it is more
likely that the veteran's current injuries are related to the
problem that the veteran experienced while he was in service.

Record of private treatment dated in March 2008 indicates
that the veteran reported a history of a low back injury
during his period of service.  It appears that the veteran
made service treatment records reflecting such injury
available to the physician for review.  Physical examination
revealed that the veteran had half-normal flexion of the
lumbar spine, zero extension, lateral flexion jog in either
direction, and straight leg raising to 90 degrees,
bilaterally.  The physician noted that x-ray examination
results dated in January 2008 revealed advanced degenerative
changes of the lumbar spine with syndesmophyte formation from
L1 to S1 as well as in the visualized lower thoracic spine.
The physician opined that the veteran's severe lower back
degenerative changes are consistent with long-standing back
complaints stemming from an injury in the Navy.  The
physician further opined that the veteran's back complaints
originated from the injury in service and that his current
complaints are causally related to same.

Service connection may be granted when all the evidence
establishes a medical nexus between military service and
current complaints.  Degmetich v. Brown, 104 F. 3d 1328
(1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  While
there is no clinical evidence of record describing
symptomatology of a low back disorder for approximately 25
years after separation from service, there is probative
evidence establishing a medical nexus between the veteran's
period of service, specifically his July 1966 low back
injury, and his current low back disorder, and service
connection for same is warranted.

The probative evidence in this case demonstrates that it is
at least as likely as not that the veteran's low back
disorder developed as a result of his in-service low back
injury.  Significantly, there is no probative evidence to the
contrary.  See Mariano v. Principi, 17 Vet. App. 305, 312
(2003) (holding that the Board is not permitted to seek
additional development for the purpose of obtaining evidence
against the claim).

Resolving the benefit of the doubt in favor of the veteran,
the Board finds that it is as likely as not that the
veteran's low back disorder is related to his period of
military service.  Therefore, the criteria for service
connection are met and service connection for a low back
disorder is granted.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Residuals of a Left Great Toe Fracture

The veteran asserts that his residuals of a left great toe
fracture are related to his period of active service.
Specifically, the veteran contends that while he was painting
a pipe aboard the USS Independence, a heavy metal object fell
upon his left toe and caused a fracture to same.  The veteran
contends that his current residuals of a left great toe
fracture are related to this in-service injury.

Report of Medical Examination, dated in September 1965, and
conducted for the purpose of entry into service, indicates
that no abnormality of the feet was noted. Report of Medical
History, also dated in September 1965, and completed by the
veteran, is silent for any foot trouble, or bone, joint, or
other deformity.

Report of Medical Examination, dated in September 1967, and
conducted for the purpose of separation from service,
indicates that no abnormality of the feet was noted.

In an undated statement, the veteran's sister stated that, in
1967 the veteran was on leave after his Mediterranean cruise
and had a broken toe.  The veteran's sister asserted that the
veteran received such injury on duty aboard the aircraft
carrier USS Independence.

In a statement dated in March 2000, a fellow service member
stated that he recalled that the veteran injured his left big
toe while painting in Portsmouth, Virginia.

In a statement dated in June 2002, the veteran's former
neighbor stated that he recalled that the veteran came home
from the Navy on crutches.  The neighbor stated that he asked
the veteran about his injury and the veteran told him that a
weight dropped on his left foot and broke his left toe while
he was aboard ship.

The Board notes that there is no record of a left foot or toe
injury contained in the veteran's service treatment records.
It is significant that the veteran's service treatment
records include only his entrance and separation
examinations, dental records, immunization records,
audiological examination results, and one instance of
treatment for a knee injury.  In essence, the veteran's
service treatment records indicate that the veteran sought
medical care only once, for a knee injury, during his period
of service.  During the course of the veteran's claim of
entitlement to service connection for a knee condition, an
additional service treatment record related to same was
located and associated with the veteran's claims file.  As
the veteran has described multiple instances of treatment
during service, and at least record of one instance of
treatment was located outside of the veteran's service
treatment records, it is unclear to the Board if the
veteran's service treatment records are missing relevant
documents.  Thus, based upon the possibility of missing
service treatment records, and the statements submitted as to
the veteran incurring a left great toe fracture during
service, the Board resolves all benefit of the doubt in favor
of the veteran and finds that he incurred a left great toe
fracture during his period of service.

As there is no evidence of record describing a left great toe
fracture, or any foot or toe injury during service, there can
be no evidence of record describing continued symptomology of
same.  Thus, it appears that chronicity in service is not
established in this case, and a showing of continuity of
symptoms after discharge is required to support the veteran's
claim of entitlement to service connection for residuals of a
left great toe fracture.  38 C.F.R. � 3.303(b).

The first post-service clinical evidence demonstrating
residuals of a left great toe fracture is dated in May 2001,
approximately 34 years after separation from service.  At
that time, VA treatment records indicate that the veteran
complained of numbness of the hallux.  Physical examination
revealed no sensation on palpation, no lesions, and a one-
inch scar on the left first interspace.  The veteran was
diagnosed with neuropathy of the hallux, secondary to trauma,
and was treated with medication.  X-ray examination at that
time revealed vascular calcification in the soft tissues,
degenerative changes in the navicula and the interior and
posterior aspect of the calcaneus, accessory nodes adjacent
to the cuboid and the navicula, degenerative changes and some
loss of joint space at the left first metatarsophalangeal
joint, and old traumatic degenerative changes in the left
first toe.

Record of private treatment dated in January 2008 indicates
that the veteran presented for documentation of his injury he
sustained while in the military in 1967.  The physician
reported that the veteran described an injury to his great
left toe.  The physician reported that the veteran described
a 300-pound metal object falling on his great left toe while
painting aboard the USS Independence.  The physician reported
that, based upon the veteran's history, there was a closed
reduction of the hallux fracture, as well as repair of the
laceration.  The physician reported that the veteran
explained that he did not have medical evidence of such
treatment subsequent to his injury because records were kept
only if the veteran was admitted to sick bay, and such was
not the case here.  The physician reported that x-ray
examination results dated in May 2001 revealed an old
fracture of the proximal phalanx of the hallux as well as
traumatic arthritis of the hallux interphalangeal joint.
Repeat x-ray examination dated in August 2007 revealed
arthritis of the hallux interphalangeal joint of the left
foot.  The physician stated that in his opinion, the veteran
has a permanent disability, associated with hallux
interphalangeal joint arthritis of the left foot, and
causally related to the injury sustained in service.

Service connection may be granted when all the evidence
establishes a medical nexus between military service and
current complaints.  Degmetich v. Brown, 104 F. 3d 1328
(1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  While
there is no clinical evidence of record describing
symptomatology of residuals of a left great toe fracture for
approximately 34 years after separation from service, there
is probative evidence establishing a medical nexus between
the veteran's period of service, specifically his claimed
fracture of his left great toe, and his current residuals of
same, and service connection is warranted.

The probative evidence in this case demonstrates that it is
at least as likely as not that the veteran's residuals of a
left great toe fracture developed as a result of an in-
service fracture of the left great toe.  Significantly, there
is no probative evidence to the contrary.  See Mariano v.
Principi, 17 Vet. App. 305, 312 (2003) (holding that the
Board is not permitted to seek additional development for the
purpose of obtaining evidence against the claim).

Resolving the benefit of the doubt in favor of the veteran,
the Board finds that it is as likely as not that the
veteran's residuals of a left great toe fracture are related
to his period of military service.  Therefore, the criteria
for service connection are met and service connection for
residuals of a left great toe fracture is granted.  38
U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

Deviated Nasal Septum

The veteran asserts that his deviated nasal septum is related
to his period of active service.  Specifically, the veteran
asserts that he experienced multiple nasal traumas while in
service that are related to his deviated nasal septum, from
which he experiences chronic nasal congestion.

Report of Medical Examination, dated in September 1965, and
conducted for the purpose of entry into service, indicates
that no abnormality of the nose was noted.  Report of Medical
History, also dated in September 1965, and completed by the
veteran, is silent for any ear, nose, or throat trouble.

Report of Medical Examination, dated in September 1967, and
conducted for the purpose of separation from service,
indicates that a mild nasal septal deviation to the right,
adequate airway, existed prior to entry, and not considered
disabling or disqualifying was noted.

A veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable evidence
demonstrates that an injury or disease existed prior thereto
and was not aggravated by service.  Only such conditions as
are recorded in examination reports are to be considered as
noted.  38 U.S.C.A. � 1111 (West 2002); 38 C.F.R. � 3.304(b)
(2008).

A pre-existing disability or disease will be considered to
have been aggravated by active service when there is an
increase in disability during service, unless there is clear
and unmistakable (obvious and manifest) evidence that the
increase in disability is due to the natural progress of the
disability or disease.  38 U.S.C.A.       � 1153 (West 2002);
38 C.F.R. � 3.306(a), (b) (2008).  Aggravation of a pre-
existing condition may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service.  38 U.S.C.A. � 1153; 38 C.F.R. �
3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995)
(holding that the presumption of aggravation created by �
3.306 applies only if there is an increase in severity during
service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).  A
mere transient flare-up during service of a pre-existing
disorder does not, in the absence of evidence of a worsening
of the underlying condition, constitute aggravation of the
disorder.  In addition, "[t]he usual effects of medical and
surgical treatment in service, having the effect of
ameliorating disease or other conditions incurred before
enlistment . . . will not be considered service-connected
unless the disease or injury is otherwise aggravated by
service."  38 C.F.R. � 3.306(b)(1) (2008).

In this case, there is no evidence that upon examination at
entry into service there was any defect, infirmity, or
disorder with regard to the veteran's nose, or symptoms of a
deviated nasal septum.  Significantly, the veteran reported,
in his September 1965 Report of Medical History, that he did
not have trouble with his nose.  As there is no evidence of
any defect, infirmity, or disorder as to the veteran's nose
indicated in the veteran's service treatment records upon
entry, a pre-existing condition is not indicated, and the
veteran is entitled to a presumption of soundness.  38
U.S.C.A. � 1111.

Because the veteran is entitled to a presumption of
soundness, the Board must determine whether the presumption
of soundness is rebutted by clear and unmistakable evidence.
The burden of proof is on VA to rebut the presumption by
producing clear and unmistakable evidence that a disability
existed prior to service and that it was not aggravated
during service.  See Wagner v. Principi, 370 F 3d 1089 (Fed.
Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003).

The examiner's notation that the veteran's deviated nasal
septum existed prior to entry to service, made at the time of
the September 1967 separation examination, is medical
evidence upon which the Board may rely in determining whether
the presumption of soundness is rebutted by clear and
unmistakable evidence.  However, the Board finds it
significant that the veteran, in statements in support of his
claim, asserted that he did not experience a deviated nasal
septum prior to entry into service, and that the September
1965 entrance examination, to include the veteran-completed
report of medical history, is silent for such condition.
Thus,
the Board resolves all benefit of the doubt in favor of the
veteran and finds that there is no clear and unmistakable
evidence that the veteran's deviated nasal septum existed
prior to entry into service, and the presumption of soundness
may not be rebutted.

The Board notes that there is no record of nasal or facial
trauma contained in the veteran's service treatment records.
As discussed above, the veteran's service treatment records
indicate that the veteran sought medical care only once, for
a knee injury, during his period of service.  As the veteran
has described multiple instances of treatment during service,
and at least record of one instance of treatment was located
outside of the veteran's service treatment records, it is
unclear to the Board if the veteran's service treatment
records are missing relevant documents.  Thus, based upon the
possibility of missing service treatment records, the
evidence of a deviated nasal septum upon separation from
service, and the veteran's assertions that he incurred nasal
trauma while training for boxing competitions during service,
the Board resolves all benefit of the doubt in favor of the
veteran and finds that he incurred a deviated nasal septum
during his period of service.

As there is no evidence of record describing a deviated nasal
septum, or any nose injury during service, there can be no
evidence of record describing continued symptomology of same.
Thus, it appears that chronicity in service is not
established in this case, and a showing of continuity of
symptoms after discharge is required to support the veteran's
claim of entitlement to service connection for a deviated
nasal septum.  38 C.F.R. � 3.303(b).

VA treatment records dated in July 1995, approximately 18
years after separation from service, indicate that the
veteran complained of difficulty breathing from the right
side of his nose.  Physical examination revealed a severe
septal deviation, and the veteran underwent elective
septoplasty.

VA treatment records dated in October 1996 indicate that
veteran had no complaints, reported that his breathing has
improved, and denied the occurrence of nose bleeds.  VA
treatment records dated in May 1998 indicate that the veteran
reported that his breathing was better.

VA treatment records dated in April 2001 indicate that the
veteran complained of nasal congestion and the occasional use
of prescription medication.  The veteran reported a history
of a deviated nasal septum subsequent to a nose injury, and
reported that he underwent septoplasty in 1995.  The
handwriting of the examiner at the time of this treatment is
unclear; however, it appears that redness and swelling were
observed.  The veteran was diagnosed with a deviated nasal
septum, treated with medication, and referred for
radiological testing.  Report of radiological testing dated
in May 2001 revealed well-developed and clear paranasal
sinuses, without variations in anatomy, and a mild nasal
septal deviation from left to right without intranasal
contact point and without evidence of acute or chronic
sinusitis.

A letter from the veteran's private physician, dated in
January 2008, indicates that the veteran provided the
physician with his service treatment records to include
reports of his entrance and separation examinations.  The
physician opined, that based upon the report of examination
indicating a normal nose upon entry into service, and the
report of examination indicating a deviated nasal septum upon
separation from service, that the veteran's deviated nasal
septum occurred during his period of service.  The physician
reported that the veteran described exposure to nasal trauma
during service, a nasal septal repair at a VA facility, and
current complaints of chronic nasal congestion treated with
nasal steroids.

Service connection may be granted when all the evidence
establishes a medical nexus between military service and
current complaints.  Degmetich v. Brown, 104 F. 3d 1328
(1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  While
there is no clinical evidence of record describing
symptomatology of a deviated nasal septum for approximately
18 years after separation from service, there is probative
evidence establishing a medical nexus between the veteran's
period of service, specifically his claimed nasal traumas,
and his deviated nasal septum, and service connection is
warranted.

The probative evidence in this case demonstrates that it is
at least as likely as not that the veteran's deviated nasal
septum developed during his period of service.

Resolving the benefit of the doubt in favor of the veteran,
the Board finds that it is as likely as not that the
veteran's deviated nasal septum is related to his period of
military service.  Therefore, the criteria for service
connection are met and service connection for a deviated
nasal septum is granted.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Earlier Effective Date

The veteran's claim of entitlement to service connection for
a left knee condition was previously denied in an August
1981.  The veteran was notified of that decision but failed
to perfect a timely appeal.  The decision became final.  In
an application dated January 18, 1983, the veteran submitted
a claim of entitlement to service connection for his knees,
in addition to other conditions.  Subsequent to such claim,
the RO sent the veteran a decision letter, dated in January
1983, which denied the veteran's claim of entitlement to
service connection for all conditions claimed.  The RO letter
also informed the veteran that his claim of entitlement to
service connection for his knees was previously denied and
that he was so advised in an August 1981 letter, and provided
the veteran with his appellate rights.  The veteran was
notified of the January 1983 decision but failed to perfect a
timely appeal.  The decision became final.

A September 1999 rating decision granted the veteran service
connection for a left knee condition, and assigned a ten
percent disability rating for same, effective September 30,
1992.  The effective date assigned corresponded to the date
of receipt of the veteran's application to reopen his
previously denied claim of entitlement to service connection
for a left knee condition.

By a February 2006 rating decision, the RO granted the
veteran an earlier effective date, April 23, 1992, for his
service-connected left knee condition.  The effective date
assigned corresponded to the date of receipt of the veteran's
application to reopen his previously denied claim of
entitlement to service connection for a left knee condition,
filed five months earlier than the September 30, 1992
application described above.

The veteran contends that the appropriate effective date
assigned for service connection of his left knee condition
should be June 26, 1981, the date of his original claim of
entitlement to service connection for a left knee condition.

The statutory and regulatory provisions explicitly specify
that except as otherwise provided, the effective date of an
evaluation and award of pension, compensation or dependency
and indemnity compensation based on an original claim, a
claim reopened after final disallowance, or a claim for
increase will be the date of receipt of the claim or the date
entitlement arose, whichever is the later.  38 C.F.R. � 3.400
(2008).

A claim is a formal or informal communication, in writing,
requesting a determination of entitlement or evidencing a
belief in entitlement, to a benefit.  38 C.F.R. � 3.1(p)
(2008).

Any communication or action, indicating an intent to apply
for one or more benefits under the laws administered by VA,
from a claimant, his duly authorized representative, a Member
of Congress, or some person acting as next friend of a
claimant who is not sui juris, may be considered an informal
claim.  Such an informal claim must identify the benefit
sought.  Upon receipt of an informal claim, if a formal claim
has not been filed, an application form will be forwarded to
the claimant for execution.  If received within one year
after the date it was sent to the claimant, it will be
considered filed as of the date of receipt of the informal
claim. 38 C.F.R. � 3.155 (2008); Norris v. West, 12 Vet. App.
413 (1999).

With regard to whether informal or formal claims, or written
intent to file an application to reopen his previously denied
claim of entitlement to service connection for a left knee
condition was filed after the January 1983 denial and prior
to the April 23, 1992, application to reopen, the Board finds
no evidence of there being such a claim.

The date of the VA examination, January 4, 1999, is the date
upon which evidence of a nexus between the veteran's in-
service knee injury and his current left knee condition was
made of record.  Thus, January 4, 1999, is the date upon
which entitlement to service connection for a left knee
condition arose.

The date entitlement to service connection for a left knee
condition arose is January 4, 1999, the date upon which the
evidence of record indicated a nexus between the veteran's
in-service knee injury and his current left knee condition.
The date of receipt of the claim of entitlement to service
connection for a left knee condition, as discussed above, is
April 23, 1992.  The later of the two dates, January 4, 1999
and April 23, 1992, is January 4, 1999.  Thus, the earliest
possible effective date for the award of service connection
for a left knee condition is January 4, 1999.  38 C.F.R. �
3.400.  The Board notes, however, that the February 2006 RO
rating decision assigned an effective date of April 23, 1992
for service connection for a left knee condition, and such
effective date will not be disturbed.

As the preponderance of the evidence is against the claim of
entitlement to an effective date earlier than April 23, 1992
for service connection for a left knee condition, the
benefit-of-the-doubt standard of proof does not apply, and
the claim is denied.  38 U.S.C.A. � 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

The claim for entitlement to service connection for a low
back disorder is reopened.

The claim for entitlement to service connection for residuals
of a left great toe fracture is reopened.

The claim for entitlement to service connection for a
deviated nasal septum is reopened.

Service connection for a low back disorder is granted.

Service connection for residuals of a left great toe fracture
is granted.

Service connection for a deviated nasal septum is granted.

An effective date earlier than April 23, 1992 for service
connection for a left knee condition is denied.

____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: VITO A CLEMENTI

disposition: denied

benefit: tdiu

text:
Citation Nr: 0909000
Decision Date: 03/11/09    Archive Date: 03/17/09

DOCKET NO.  06-03 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia

THE ISSUE

Entitlement to a total rating based on individual
unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel

INTRODUCTION

The Veteran had active duty service from May to July 1976.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2004 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).

FINDING OF FACT

The Veteran is not in receipt of service connection for any
disability.

CONCLUSION OF LAW

The criteria for entitlement to a total rating based on
individual unemployability due to service-connected
disabilities have not been met. 38 U.S.C.A. �� 1155, 5107(b)
(West 2002); 38 C.F.R. �� 3.340, 3.341, 4.16(a)(b) (2008).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Before addressing the merits of the claim, the Board is
required to address the duty to notify and duty to assist
imposed by 38 U.S.C.A. �� 5103, 5103(A) and 38 C.F.R. �
3.159. However, the provisions of the Veterans Claims
Assistance Act have no effect on an appeal where the law, and
not the underlying facts or development of the facts are
dispositive in a matter. Manning v. Principi, 16 Vet. App.
534, 542-543 (2002). In this instance, the law is dispositive
of the matter, and no further discussion of the duty to
notify and assist is necessary.

Analysis

The Veteran seeks TDIU. The preponderance of the evidence is
against the claim and it will be denied.

In order to establish a total rating based upon individual
unemployability due to service-connected disability, there
must be impairment so severe that it is impossible to follow
a substantially gainful occupation. See 38 U.S.C.A. � 1155;
38 C.F.R. �� 3.340, 3.341, 4.16. In reaching such a
determination, the central inquiry is "whether the Veteran's
service connected disabilities alone are of sufficient
severity to produce unemployability." Hatlestad v. Brown, 5
Vet. App. 524, 529 (1993). For VA purposes, the term
"unemployability" is synonymous with an inability to secure
and follow a substantially gainful occupation. VAOPGPREC 75-
91; 57 Fed.Reg. 2317 (1992). Consideration may be given to
the Veteran's level of education, special training, and
previous work experience in arriving at a conclusion, but not
to his age or to the impairment caused by nonservice-
connected disabilities. See 38 C.F.R. �� 3.341, 4.16, 4.19.

VA regulations establish objective and subjective standards
for an award of total rating based on unemployability. When
the Veteran's schedular rating is less than total (for a
single or combination of disabilities), a total rating may
nonetheless be assigned provided that if there is only one
service-connected disability, this disability shall be rated
at 60 percent or more. When there are two or more
disabilities, at least one disability must be ratable at 40
percent or more, and any additional disabilities must result
in a combined rating of 70 percent or more, and the disabled
person must be unable to secure or follow a substantially
gainful occupation. See 38 C.F.R. � 4.16(a). A total
disability rating may also be assigned on an extra-schedular
basis, pursuant to the procedures set forth in 38 C.F.R. �
4.16(b), for Veterans who are unemployable by reason of
service-connected disabilities, but who fail to meet the
percentage standards set forth in section 4.16(a).

The Veteran is not service connected for any disability.
Without a service connected disability, TDIU cannot be award
on either a schedular or extraschedular basis. See 38 C.F.R.
� 4.16(a) and (b). The TDIU claim is denied as a matter of
law.

ORDER

Entitlement to a total disability rating based on individual
unemployability (TDIU) is denied.

____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs