BVA9505198 DOCKET NO. 90-27 010 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than October 31, 1988, for the assignment of a 100 percent schedular disability rating for service-connected post-concussion syndrome. 2. Entitlement to an effective date earlier than June 11, 1986, for assignment of a 50 percent schedular disability rating for service-connected post-concussion syndrome. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for the residuals of a neck and back injury, to include nerve damage, impaired circulation, distorted hearing, and vision loss. REPRESENTATION Appellant represented by: Non Commissioned Officers Association of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from July 1953 to May 1957. This appeal arises from numerous rating decisions issued by the St. Petersburg, Florida, Regional Office (RO) and presents a complicated procedural history. By way of an overview, the veteran filed his original claim for benefits in September 1981. Service connection for the residuals of back and neck injuries, as well as for a post-concussion syndrome, was denied by the RO in March 1982. On appeal, however, the Board of Veterans' Appeals (Board) granted service connection for a post-concussion syndrome in a decision dated in December 1984. The Board denied the claim for service connection for the residuals of a back and neck injury. The RO thereafter assigned a 10 percent schedular rating for the service-connected post-concussion syndrome, effective from September 10, 1981. On appeal, the Board confirmed the 10 percent evaluation assigned in a December 1985 decision. The veteran filed a motion for reconsideration of the Board's decision, which was denied in June 1986, at which time he was informed that the Board's determination was final, and that he would need to submit new and material evidence to the RO in order to reopen his claim for an increased schedular disability. Upon receipt of such evidence, the RO issued a rating decision in March 1987 increasing the schedular disability rating for a post- concussion syndrome from 10 percent to 50 percent, to take effect as of June 11, 1986, the date upon which the veteran's request for an increased rating was received. The veteran subsequently submitted an unsigned statement disputing the RO's action to his U.S. Senator, C. Mack. This correspondence was forwarded to the RO in December 1987, which responded that this unsigned letter was insufficient to reopen the veteran's claim. Senator Mack resubmitted a copy of this correspondence in May 1988, which again was met with a negative reply by the RO. The veteran appealed the RO's refusal to reopen his claim, and filed a request for a schedular rating in excess of 50 percent for his service-connected post-concussion syndrome, which was denied by the RO in February 1989. In a January 1990 decision, however, the Board found that his letters to Senator Mack in December 1987 did constitute a timely notice of disagreement of the March 1987 rating action, and remanded the case for adjudication of whether a schedular disability rating in excess of 50 percent was warranted. On remand, the RO issued a rating action in March 1991 which again denied an increased schedular rating for a post-concussion syndrome. The RO also denied entitlement to a total and permanent rating for this disability, as well as entitlement to an effective date of September 10, 1991, for the award of a 50 percent schedular rating. The RO also found that new and material evidence sufficient to reopen the claim for service connection for the residuals of a back and neck injury, had not been presented. The veteran appealed this decision, and thereafter also filed a second motion to the Board for reconsideration of its December 1984 and December 1985 decisions. This motion was denied in May 1992. The Board did, however, remand the veteran's appealed issues in July 1992 for additional evidentiary development. In its decision on remand in June 1993, the RO granted entitlement to a total and permanent 100 percent disability rating for service-connected post-concussion syndrome, effective from October 31, 1988, but denied entitlement to any earlier effective dates for increased benefits. Thus the remaining issues on appeal are whether the veteran is entitled to an effective date prior to October 31, 1988, for a 100 percent rating for his service-connected post-concussion syndrome, whether he is entitled to an effective date prior to June 11, 1986, for a 50 percent evaluation for this disability, and whether new and material evidence has been presented to reopen the claim for service connection for the residuals of a neck and back injury. The claims folder was most recently returned to the Board in September 1994, and is now ready for appellate review and consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his service-connected post- concussion syndrome has rendered him totally disabled since service, when he incurred the original injury which caused this syndrome. He avers that he suffers from emotional and physical instability which prevented him from seeking any type of employment outside of that provided by friends and family for many years. He also asserts that he suffered from major neck and back injuries, including fractures to numerous vertebrae in the neck and back, which resulted in residual nerve damage, impaired arterial circulation of the brain, progressive vision loss, and distortion of his hearing, including hypersensitivity to certain radio and television frequencies. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the grant of a 100 percent schedular rating for service-connected post-concussion disorder, effective from February 24, 1986. After review of the record, however, we conclude that a grant of a schedular rating in excess of 10 percent for this disability is not established prior to February 24, 1986. Furthermore, we find that new and material evidence sufficient to reopen the veteran's claim for service connection for the residuals of a neck and back injury has not been presented. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The Board, in a December 2, 1985, decision, upheld May and June 1985 rating actions which granted a 10 percent schedular disability rating for the veteran's service-connected post- concussion syndrome, effective as of September 10, 1981. 3. The veteran's claim for an increased evaluation was received on June 11, 1986. Entitlement to a 50 percent schedular disability rating was granted by the RO in March 1987, effective June 11, 1986. A 100 percent schedular rating was thereafter granted by the RO in June 1993, effective October 31, 1988. 4. The evidence presented establishes entitlement to a 100 percent schedular rating prior to the effective date of October 31, 1988, assigned by the RO. 5. Evidence submitted by the veteran in connection with his reopened claim does not show that a 100 percent schedular disability rating is warranted prior to June 11, 1986, the date his reopened claim was received. 6. The Board denied entitlement to service connection for the residuals of a back and neck injury in December 1984, and this decision is final. 7. The evidence presented since 1984 is neither new nor material; it is either cumulative of evidence previously submitted, or it is not relevant or probative on the issue of whether currently claimed residuals arose as the result of service. CONCLUSIONS OF LAW 1. The Board 's December 1985 decision denying a schedular disability evaluation in excess of 10 percent for service- connected post-concussion syndrome, is final. 38 U.S.C.A. § 7103(a) (West 1991). 2. An effective date earlier than February 24, 1986, for the assignment of a rating in excess of 10 percent for a post- concussion syndrome is not established. 38 U.S.C.A. §§ 5107, 5110(g) (West 1991); 38 C.F.R. § 3.400(o) (1994). 3. A 100 percent schedular disability rating is warranted for the veteran's service-connected post-concussion syndrome, effective from February 24, 1986. 38 U.S.C.A. §§ 5107, 5110(g) (West 1991); 38 C.F.R. § 3.400, Part 4, Diagnostic Code 9304 (1994). 4. The veteran's claim for service connection for the residuals of a neck and back injury is not reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); 38 C.F.R. § 3.156, 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. I. Service-Connected Post-Concussion Syndrome The veteran was granted a 100 percent permanent schedular rating for his service-connected post-concussion syndrome effective from October 31, 1988. He essentially contends that this 100 percent disability evaluation should be awarded an effective date of September 10, 1981, the date upon which his original claim for benefits was received. Despite the veteran's numerous arguments for a grant of increased benefits retroactive to the date of receipt of his original claim, we find that applicable laws and regulations provide no basis for such an award. The veteran's claim was received on September 10, 1981, and this claim was denied by the RO in March 1982. The Board, in its December 1984 decision on appeal, did award a grant of benefits, and the claim was thereafter returned to the RO for assignment of an appropriate schedular evaluation. The RO awarded a 10 percent disability rating in a May 1985 decision, and in June 1985, assigned a retroactive effective date of 10 percent for these benefits. The veteran appealed the 10 percent evaluation assigned, the Board confirmed this rating in December 1985. Although the veteran filed two motions for reconsideration of the Board's 1984 and 1985 decisions, these motions were denied in June 1986, and again in May 1992. Therefore, the Board's December 2, 1985 decision, confirming the RO's award of a 10 percent schedular rating, is a final decision. 38 U.S.C.A. § 7103(a) (West 1991). The veteran has argued that the RO committed "clear and unmistakable error" in its initial grant of only a 10 percent rating in its May and June 1985 actions. A recent decision by the United States Court of Appeals for the Federal Circuit has declared, however, that an action by the RO which has been appealed to and affirmed by the Board is "subsumed" by the Board's decision. Therefore, no claim of clear and unmistakable error pursuant to 38 C.F.R. § 3.105 exists as a matter of law with respect to the disputed RO decision. See Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994); see also, Duran v. Brown, U.S. Vet. App. No. 93-338 (Dec. 13, 1994). Inasmuch as the Board's December 1985 decision confirmed the RO's May and June 1985 actions awarding a 10 percent rating for post-concussion syndrome, effective from September 1981, any claims concerning clear and unmistakable error in the RO's actions are without legal merit. In light of the finality of the Board's December 1985 decision, the veteran's entitlement to an earlier effective date for a 100 percent schedular disability rating must relate to his reopened claim for an increased evaluation submitted on June 11, 1986. The effective date for an increase in benefits will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim for increased benefits. 38 U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.400 (o) (1994). The veteran's service-connected post-concussion syndrome is evaluated pursuant to the criteria outlined at 38 C.F.R. Part 4, Diagnostic Code 9304 (1994). A 100 percent schedular rating will be assigned where the impairment of intellectual functions, orientation, memory and judgment, and the lability and shallowness of effect are of such extent, severity, depth, and persistence, that they produce total social and industrial impairment. Where manifestations of an organic mental disorder are less than 100 percent, evaluations are based upon symptom combinations, and the extent to which they produce social and industrial impairment. Severe or considerable impairment will be granted schedular ratings of 70 percent and 50 percent, respectively, while definite or mild impairment will be awarded respective evaluations of 30 percent and 10 percent. In support of his June 1986 reopened claim, the veteran submitted numerous sworn statements and affidavits from various friends and family members. The first was a sworn affidavit from [redacted], Rector of the St. David's Episcopal Church, submitted in February 1986. Rev. [redacted] attested to several incidents which had occurred on church property involving the veteran, one of his parishioners. He recalled how the veteran had inexplicably "kicked the chair out" from under a guest at a birthday party, had "left-hooked" a coffee urn, resulting in a detached retina, had suffered a dislocated and fractured right shoulder and broken eight teeth after throwing a table, and had become berserk at a Wednesday night service when touched from behind. According to Rev. [redacted], the veteran "throws whatever is in his hands when overstressed," including a large cut-glass bowl of cookies against a wall, and a gallon of milk at a soda machine. The veteran also "cannot deal for more than a few minutes" with situations outside of his control, and becomes pale, shaky and disoriented after performing even minor physical tasks. Ms. [redacted], a stenographer who has assisted the veteran with the filing of his disability claims, submitted a statement in June 1986. She noted that the veteran is extremely difficult to work with, because he "becomes very confused over the least little thing. He often loses his train of thought. He becomes totally fatigued after brief work periods." She indicated that he is unable to function without his "daily check sheet" found in a three-ring binder to which he constantly refers. Without this notebook, he "would be completely disoriented." While he presented a very professional exterior image, it was clear to Ms. [redacted] that he is "totally unemployable." In a statement dated in July 1986, the veteran's former wife, [redacted], noted that the veteran's "head doesn't work right." Although he is a trained accountant and would be qualified to take the examination for certified public accountants (C.P.A.), "he doesn't understand money or a checkbook," and an alphabetical filing cabinet "leaves him hopelessly confused," and routine tasks were overwhelming. His memory is based upon the daily sheet contained in his black notebook, and Ms. [redacted] believed that his judgment is "flawed." She cited many instances where he lost control, or became confused and exhausted "over nothing," and noted that he could not socially handle "any recreational activity."(emphasis in the original) His step-daughter, [redacted], stated in her August 1986 affidavit that during her childhood, the veteran was unable to deal with sudden movement, noise, or "more than one person at a time." She did not feel that he was any more capable of currently dealing with family life than he was when she was still a child. She recalled that the family home was filled with holes in the walls, broken furniture and shattered glass, and that the veteran had been fighting to maintain self-control for years. Ms. [redacted] noted that when he "feels good and you are alone with him he is kind, calm, and understanding." Mrs. [redacted], who has been acquainted with the veteran for many years, also submitted a sworn affidavit in August 1986. She stated that he is unable to process more than one thought at a time, and could not function without his notebook. He remains alone in his cottage most of the time, and that minor things confuse him, causing him to pass out, flee to his cottage, or react with physical violence. Although he puts on a coat and tie every day as if he is going to work, he has no memory of the accounting knowledge for which he received a college degree. A September 1986 letter from Mr. [redacted], a C.P.A., related that the veteran has the academic qualifications to sit for the C.P.A. examination, but apparently has little or no memory of accounting procedures. He noted that the veteran "does not exhibit any ability to adapt the (sic) change in people," and would not "have a satisfactory relationship with other employees or with clients." Mr. [redacted] and his wife, both of whom attend church with the veteran, have attempted in vain to find some sort of productive activity for him to perform. The veteran underwent a Department of Veterans Affairs (VA) psychiatric examination in October 1986, at which time he complained of problems with memory retention and concentration, as well as confusion and feeling "like his head is going to explode," resulting in violent reactions. He claimed to experience "passing out spells," and noted becoming "rattled very easily." He also stated that he did not like to socialize very much because he became confused when talking to more than one person at a time. He also noted a past habit of "giving things away" and not knowing why he did this. He explained that he had previously given two houses away to charity. Upon examination, he was well-dressed and groomed in a three- piece suit and tie. His speech was clear and coherent, but somewhat anxious during the whole interview. He admitted to vague auditory hallucinations and mood swings resulting in high creative energy. He also admitted to feeling depressed, and appeared "rather perplexed," with difficulty in concentrating. He was cognitively oriented times three. He appeared to have trouble with remote memory, but could remember specific details and specific events in his life. He could not, however, remember the names of past Presidents and his immediate recall was only one of three objects. His mathematical skills were found to be preserved, although these skills were accomplished rather ponderously. The examiner opined that several diagnoses could be made, including an atypical organic brain syndrome, a factitious disorder with psychological symptoms, or psychogenic amnesia, and believed that additional testing was necessary in order to clarify the perplexing disability picture presented. With the exception of the veteran's personal submissions, which are primarily repetitious of previously submitted contentions, the remainder of the pertinent medical and lay evidence which has been submitted is dated subsequent to October 31, 1988, the effective date assigned by the RO for the veteran's 100 percent permanent schedular rating. While all of the evidence contained in the claims folder has been thoroughly reviewed, we need not give a detailed description of this more recent evidence, as the award of the 100 percent award effectuated as of October 1988 is not in dispute. After review of the lay statements and affidavits submitted by the veteran in 1986 in support of an increased rating, we conclude that the preponderance of the evidence does demonstrate that he is entitled to a 100 percent schedular rating prior to October 31, 1988. The numerous statements proffered in mid-1986 from long-time friends, family members, and those involved in the veteran's daily activities, amply demonstrate that the veteran was wholly impaired both industrially and socially by his post- concussion syndrome. Rev. Cook's recollections concerning explosive or disruptive behavior, including numerous incidents where the veteran suffered personal injuries from his actions, describes an individual whose emotional equilibrium is so fragile as to essentially preclude even the minimal daily stresses which most people experience in everyday life. According to his ex-wife, his minister, and the woman who assists him with his own disability claims, he is incapable of focusing for any length of time, becomes completely confused and disoriented by the slightest mental intrusion, and is exhausted by even the simplest of physical tasks so that he must rest much of the time. His step-daughter, who regard him as her own father, indicated that he was no more capable of dealing with family life in 1986 when she submitted her statement, than he was when she was a child. This evidence clearly presents the picture of an individual precluded from almost all types of regular daily functioning as a result of his brain trauma in service. Although the VA examiner was puzzled by the disability picture presented during the veteran's October 1986 psychiatric examination, the findings indicated during the course of that examination are entirely consistent with those noted by the lay witnesses who submitted personal statements. He presented himself as very well-dressed and groomed, articulate and coherent. According to his friends and family, this is his typical behavior. Upon closer scrutiny, however, he appeared to be perplexed, confused, and ponderous in his attempts to answer questions and perform certain skills. He could not even remember the names of past Presidents, although he could easily remember many remote dates of personal events in his life. This follows the pattern described by his friends, who noted that the veteran has absolutely no memory for that which he has learned, including the accounting principles for which he earned a bachelor's degree, but is able to remember many of the details concerning his own life. We conclude, therefore, that entitlement to a 100 percent schedular disability rating is warranted prior to October 31, 1988. With regard to the appropriate effective date to be assigned, we note that the earliest evidence submitted which had not been considered by the Board in its December 1985 decision was the February 24, 1986, statement made by Rev. [redacted]. It is our opinion that this affidavit also represents the earliest evidence upon which it is factually ascertainable that a compensable increase in disability had occurred. Inasmuch as the veteran's claim for an increased schedular rating was received within one year of the date of this evidence, we conclude that this is the appropriate effective date for our award of a 100 percent schedular rating for the veteran's service-connected post- concussion syndrome. 38 U.S.C.A. §§ 5107, 5110(g) (West 1991); 38 C.F.R. § 3.400(o), Part 4, Diagnostic Code 9304 (1994). II. Request to Reopen Claim for Service Connection for Residuals of Back and Neck Injury The veteran appeals the RO's denial of his request to reopen a claim for service connection for the residuals of a neck and back injury, based upon his submission of new and material evidence. Service connection for this disability was denied by the Board in a December 1984 decision, and motions for reconsideration of this decision were denied by the Board in June 1986, and again in May 1992. Under governing law and regulations, the prior decision of the Board is final, and the claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); 38 C.F.R. § 3.156 (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991). New and material evidence means evidence, not previously submitted to the RO, which is not cumulative or redundant, and which is relevant and probative on the issue under consideration. To reopen the claim, there must be a reasonable possibility that the outcome would differ when the new evidence is considered in light of all the evidence. 38 C.F.R. § 3.156 (1994); Colvin v. Derwinski, 1 Vet.App. 171 (1991). In determining whether evidence is sufficiently material to support reopening of a claim, the credibility of the evidence must be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). The veteran contends that he incurred such residuals such as vertebral fractures, nerve damage, impaired circulation to the brain, auditory impairment, and visual loss as a result of back and neck injuries suffered during the same tank incident which resulted in his post-concussion syndrome. In Glynn v. Brown, 6 Vet.App. 523 (1994), the United States Court of Veterans Appeals (Court) held that, when determining whether new and material evidence had been submitted to warrant reopening a claim, consideration must be given to all of the evidence submitted since the last final denial on the merits. Glynn, at 528 and 529. In its December 1984 decision which denied service connection for these residuals, the Board considered all of the evidence contained in the claims folder at that time. Although most of the veteran service records were not available, some morning reports were reviewed, as well as numerous reports and statements from private physicians dating from May 1978 to June 1983, as well as lay statements submitted from his former wife, as well as other acquaintances. The private medical records include reports from Dr. D. Colvin, M. Logsdon, Dr. R. B. Hanahan, Dr. P. B. Dunne, Dr. L. J. Hall, all of whom treated the veteran for symptoms which they associated with his tank accident in service. Upon review of this evidence, the Board concluded that although enough evidence had been presented to establish that the veteran suffered a head injury in service, the record was insufficient to establish that the "long list" of claimed physical disabilities actually originated from the reported tank incident. The Board specifically noted that despite the absence of service medical records, through no fault of the veteran, the record contained no "contemporaneous medical data reflecting the presence of pertinent disability in service or during the immediate post service years." In determining whether new and material evidence sufficient to reopen a claim for the residuals of a back and neck injury has been presented, we considered the evidence which was submitted or obtained subsequent to the Board's 1984 decision. A VA psychiatric examination conducted in April 1985 noted a subjective history of multiple complaints, including trauma to the deep pain sensors in his upper extremities, and multiple fractures to his cervical and thoracic vertebrae. No objective medical findings were made during the course of this examination. A July 1986 affidavit from the veteran's former wife, [redacted], noted that the veteran cannot "handle" television or radios apparently because of auditory disturbances. According to Ms. [redacted], the veteran once almost tore a heavy, leather-bound Bible in half when a guest speaker gave a sermon over a public address system. He became complete disoriented, and had to be taken outside. An August 1986 sworn statement from Mrs. [redacted] also verified the veteran's sound-sensitivity, noting that any television or electronic sound would send him "into a fog or a frenzy." A VA outpatient treatment report dated in November 1986 again noted subjective complaints of hypersensitivity to sound, as well as spinal abnormalities caused by a head and back injury in service. Sensory examination found some reductions in both lower extremities, as well as decreased range or motion in the neck. A November 1986 VA psychiatric examination again noted subjective complaints of extreme sensitivity to sounds, as well as the sudden development of cataracts in his eyes in 1980. No specific objective medical findings were made with regard to any of the veteran's physical complaints. The veteran was admitted to the VA Hospital in Tampa, Florida, in January 1989, at which time he gave a history of fractures to the cervical and thoracic vertebrae, cataract surgery, and retinal detachment of the left eye. Physical examination found that he was alert and oriented times three. Cranial nerves II-XII were intact and a motor examination found no abnormalities, with no atrophy or fasciculation. Sensory systems were intact to pain, as well as to light and deep touch. The bottom of his feet were extremely sensitive to all stimuli. This was the only neurological deficit noted. The diagnosis was post-concussion syndrome. Private records from the Peace River Center for Personal Development, in Lakeland, Florida, describe the veteran's psychological treatment from April to December 1992. In his initial evaluation, he complained of hearing and vision problems, multiple fractured vertebrae, and circulations problems caused by a tank accident in service. Subsequent treatment records made reference to these complaints, particularly the veteran's auditory sensitivity to television, radios, and other electronic apparatus which produced high frequency sounds. During the course of a VA social and industrial survey conducted in November 1992, interviews were conducted of several of the veteran's neighbors and friends. Some of them, reported that he appears to be sensitive to electromagnetic radiation, and cannot tolerate loud noises from cars, television, stereos, and radios, and uses a "sound blocker" in his home to eliminate these noises. In an accompanying field examination of the veteran, he noted that even the sound of crickets is very painful. He noted that his accident must have destroyed the deep pain sensors in his body, as he has never suffered any pain from the multiple neck and back vertebral fractures, or the post-service accident which shattered his right arm. VA psychiatric examinations conducted in January and April 1993 again noted subjective complaints of hypersensitivity to high frequency sounds, but no objective physical findings were included in the examination reports. In 1984, 1991, and 1994, the veteran provided three separate submissions of evidence, each contained in a large notebook/folder. These notebooks contain numerous medical reports, service personnel records, lay statements by friends, family members and others who served with the veteran, as well as personal statements made by the veteran himself. While most of these records are photocopies of records either considered by the Board in December 1984, or previously described in the present decision, these notebooks do contain copies of some evidence which was not referred to by the Board in its 1984 decision. Although many of these records may have been part of the claims folder at the time of the Board's previous denial, we will specifically address those which were not discussed. Dr. W. F. Malzone, conducted a private examination of the veteran in October 1982, which was not previously considered by the Board. In the course of this examination, the veteran noted receipt of a significant concussion in service, with multiple cervical and thoracic vertebral fractures. He complained of hyperacusis, inexplicable episodes of nausea, vomiting and dizziness, an absence of deep pain sensibilities throughout his body, and progressive loss of vision for which he was undergoing cataract extraction. Examination found no skull tenderness, and full extraocular motion with full visual fields. Visual acuity was, however, severely limited. Auditory acuity was normal for spoken voice, although no other testing was accomplished. His neck was profoundly limited in motion to approximately five percent of normal, and lateral bending was limited to 20 percent of normal. Torsion to either side was limited to approximately 30 percent of normal. Cranial nerves II-XII were intact. The veteran's gait was slow and cautious without specific defect. He exhibited slight dysmetria in finger-to-nose touching bilaterally and heel-to-shin testing also found a moderate degree of dysmetria. Vibratory and position sense were relatively well-preserved, with moderate decrease to pin-prick and temperature sensibility bilaterally throughout the body. Reflexes were present in all spheres. The clinical impression was a cranio-cerebral trauma with multiple residuals. Dr. Malzone suspected some degree of brain stem dysfunction with central hearing disturbances and paroxysmal vertigo, as well as possible cervical myelopathy with hyperreflexia. Dr. Malzone suggested that a full battery of tests, including a CT scan, brain stem auditory evoke response and electroencephalogram (EEG) be performed. Also submitted were numerous lay statements made by various friends and acquaintances. These statements, dated from January through September 1984, were submitted by [redacted], the mayor of Radcliff, Kentucky, [redacted], a long-time friend of the veteran, M. Logsdon, a treating chiropractor, [redacted], the veteran's insurance agent, [redacted], the veteran's former wife, Dr. D. Colvin, and [redacted], Chief of Police in Radcliff, Kentucky. All of these affiants attest that they know of no other illnesses or injuries, other than the tank accident in service, to which his disabilities could be attributed. The veteran also produced numerous typed lists of physicians who had rendered treatment since service, but whose records are no longer available. The veteran also submitted copies of photographs from his period of service, photographs and general descriptions concerning the type of tank on which he was riding when his accident occurred, as well as photocopied magazine articles concerning various medical topics, including medical malpractice and misdiagnosis. The most recent evidence submitted is a March 1994 letter from Dr. R. Rosen, a licensed psychologist who reviewed the evidence submitted to the Board in October 1984, and concluded that "it is my professional opinion that [the veteran] has been permanently and totally and continuously disabled due to a brain injury which he sustained in 1955 while on active military duty." After reviewing all of the evidence submitted by the veteran since 1984, we conclude the new and material evidence sufficient to reopen his service-connection claim for the residuals of a back and neck injury has not been presented. The VA psychiatric examination reports of April 1985, November 1986, January 1993, and April 1993, as well as the Peace River Center private records from 1992, each contain only subjective histories of auditory disturbances, spinal abnormalities, circulatory disturbances, and deep pain sensory deficits. These reports do not, however, provide any objective medical findings. Inasmuch as the veteran's subjective medical history was considered by the Board in its 1984 decision, the reiteration of those allegations in the course of VA and private examination reports is merely cumulative, and does not constitute evidence which is "new." The medical findings noted in the November 1986 outpatient report, as well as those found in the VA hospitalization report from January 1989, are neither duplicative nor cumulative of previously submitted evidence. These records are not, however, relevant on the central issue of whether the veteran incurred a back and neck injury in service for which he currently suffers residual disabilities. Although the 1986 examination found some sensory reductions in the lower extremities, and decreased range of motion in the neck, the report provides no information on the etiology of these findings. The 1989 hospitalization report diagnosed the presence of a post-concussion syndrome, but found no neurological deficits except for extreme sensitivity on the bottom of the veteran's feet. Once again, however, the examiner did not specify what relationship, if any, this finding had to the veteran's alleged injuries in service. The 1986 affidavits from Ms. [redacted] and Mrs. [redacted], as well as the interviews conducted during the November 1992 VA social and industrial survey, support the veteran's contention that he currently suffers from auditory disturbances related to high frequency "electromagnetic" impulses. These reports do not proffer, however, any evidence concerning the history or etiology of these disturbances, and appear to again be based upon the subjective complaints of the veteran. Although we do not question the credibility of these individuals' observations, these statements simply do not provide any information which has not previously been considered by the Board concerning the veteran's alleged auditory disturbances, and their relationship to his reported injuries in service. Likewise, the lay statements dated in 1984 from the mayor and police chief of Radcliff, Kentucky, the veteran's insurance agent, his former wife, and a long-time friend have little probative value. Despite their long acquaintances with the veteran, none of these individuals is medically qualified to attest to the causation of his various disabilities. Moreover, their statements are vague, inasmuch as none of them refer to any specifically claimed symptoms or manifestations, and upon review it is clear that their statements are based predominantly upon the subjective statements and history related by the veteran. Although the 1984 statements made by Dr. Colvin, and M. Logsdon, the veteran's treating chiropractor, are entitled to more weight, in light of their status as treating medical professionals, we note that the opinions provided by these individuals mirror those already provided in earlier records. In an August 1981 handwritten letter, Dr. Colvin opined that the veteran's various disabilities were possibly sustained in the course of his alleged in-service tank accident. A May 1978 letter from M. Logsdon also related these claimed residuals to the same incident. Both of these letters were reviewed, and weighed, by the Board in the 1984 decision. Thus the statements made in 1984 by both Dr. Colvin and M. Logsdon are cumulative of previously considered evidence, and are not new. The other evidence submitted, including the photographs of the veteran during service, the lists of physicians who rendered treatment after service, and the photocopied medical articles, has not been previously considered by the Board, and is not cumulative of other evidence contained in the record. Nevertheless, these reports, articles, pictures, and lists have no probative value with regard to the central issue of service connection for the residuals of a back and neck injury. None of this evidence provides any relevant, contemporaneous information concerning whether the veteran suffered a back and neck injury in service which currently results in numerous residual manifestations. The veteran's military service, and the specifications of the tank which was involved in his reported in-service injury are not in dispute. The fact that he sought medical treatment from several physicians is immaterial when there is no accompanying evidence, such as reports, statements, or any other information, which describes the type of treatment received, or the physical or mental disorders for which treatment was sought. The medical articles, although informative, have no direct bearing upon the specific facts alleged in this case, and in some instances, are not even applicable to the types of residual disabilities claimed by the veteran. Dr. Rosen's March 1994 letter is also of no probative value with regard to the issue of service connection for the residuals of a back and neck injury. Dr. Rosen's opinion focuses only on the presence of a permanent, total and continuous disability resulting from a brain injury suffered in service. Inasmuch as the veteran is already service-connected for a post-concussion syndrome, his reference to a "brain injury" is sufficiently vague to render his opinion questionable with regard to the veteran's other claimed physical disabilities. With regard to Dr. Malzone's October 1982 examination report, we note that he made numerous findings of neurological, auditory, and visual abnormalities which he attributed to the veteran's cranio-cerebral trauma in service. Nevertheless, despite Dr. Malzone's opinions, we conclude that this report is not sufficient to support reopening the veteran's claim for service connection. In the course of the Board's 1984 decision, we reviewed several medical examination reports dated in 1982 and 1983 from Dr. R. B. Hanahan, as well as a lengthy 1982 report from Dr. P. B. Dunne, both of whom came to the same conclusion--that the veteran suffered from numerous neurological, orthopedic, auditory, and visual disabilities all of which were related by history to the 1955 in-service tank accident. Upon review of these reports, the Board found that these reports could only relate these diagnosed residuals to back and neck injuries in service to the history given by the veteran. The claims folder contained no medical data which was either contemporaneous to service, or obtained immediately after service. Moreover, the lay statements provided by family members and acquaintances with whom he served in the military did not adequately document that the "long list of claimed disabilities" actually originated from the reported tank accident. In Kates v. Brown, 5 Vet.App. 93 (1993), the Court held that new evidence, accorded full credibility, must be of sufficient weight or significance to establish a reasonable possibility that the outcome would change. Even where evidence which is probably relevant and probative as to material issues, this same evidence may fall short of creating a reasonable possibility of changing the result and, consequently, will not be material. See Cox v. Brown, 5 Vet.App. 95 (1993). We find that Dr. Malzone's 1982 report is relevant and probative as to material issues. Nevertheless, when viewed in the context of the record as a whole, particularly in light of the other medical examination reports also submitted in 1982 and 1983, we conclude that this evidence is not of sufficient weight or significance as to be "material." His findings, like those of Drs. Dunne and Hanahan, are again based upon the history provided by the veteran, and are proffered many years after the veteran's separation from service. His opinions are credible, but do not provide any additional positive evidence which would create a reasonable possibility of changing the prior outcome of this case. Hence, Dr. Malzone's examination report is not material. Id., at 99. Despite the numerous records, reports, statements, and arguments proffered by the veteran in support of his allegations, we conclude that none of this evidence is both new and material, and therefore sufficient to reopen his claim for service connection for the residuals of a back and neck injury. Inasmuch as a relative balance of negative and positive evidence has not been presented, no benefit of the doubt may be accorded. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). ORDER Entitlement to a 100 percent schedular disability rating for service-connected post-concussion syndrome is granted, effective from February 24, 1986. Entitlement to a schedular disability rating in excess of 10 percent for service-connected post-concussion syndrome prior to February 24, 1986, is denied. The request to reopen the claim for service connection for the residuals of a back and neck injury is denied. JACK W. BLASINGAME 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. (CONTINUED ON NEXT PAGE) 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.