BVA9503642 DOCKET NO. 93-10 781 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from July 1945 to November 1946. The claims file contains a report of a rating decision dated in November 1986 denying entitlement to service connection for a psychiatric disorder diagnosed as a borderline personality disorder with paranoid psychosis. The current appeal arose from an April 1991 notification to the veteran by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO notified the veteran that he was non-service connected for a psychiatric disorder. In a rating decision issued in November 1991, the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. The case has been forwarded to the Board of Veteran's Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a chronic psychiatric disorder which developed secondary to his treatment for service-connected pulmonary tuberculosis when he was hospitalized by VA from November 1951 to June 1952. 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 files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder. FINDINGS OF FACT 1. In November 1986, the RO denied entitlement to service connection for a variously diagnosed psychiatric disorder, finding that a personality disorder was not a disorder for which service connection can be granted; and finding that a paranoid psychosis was not incurred in service and was first noted at too remote a time from service to be related thereto. 2. Additional evidence submitted since the November 1986 RO rating decision consists of the hearing testimony and the opinion of a non-VA health care professional noting he did not believe that a psychiatric disorder developed secondary to treatment of the veteran for service-connected pulmonary tuberculosis. 3. The additional evidence submitted since the November 1986 rating decision, when viewed in light of all the evidence of record, does not raise a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. The decision of the RO in November 1986, denying the veteran's claim of entitlement to service connection for a psychiatric disorder, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 2. Evidence received since the RO denied entitlement to service connection for a psychiatric disorder in 1986 is not new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). The evidence which was of record at the time of the RO's decision in November 1986 will be summarized below. The service medical records disclosed no evidence of a psychiatric disorder. The veteran experienced a schizophrenic reaction, latent type, manifested by anxiety when hospitalized by VA from November 1951 to June 1952. During the admission he was treated for his service-connected pulmonary tuberculosis. Such treatment involved a segmental resection of the left upper lobe. In a medical certificate of record dated in May 1957, Harold Nelson, M.D., noted that he had treated the veteran since March 1956. Dr. Nelson noted that the veteran was pre-schizophrenic with beginning paranoid trends, and acting out rather hostile feelings. At a June 1957 VA psychiatric examination, the veteran reported that he entered the novitiate in August 1955. During his stay he entered into a state of depression. He was permitted to study further in September 1955 until December 1955. He also developed an alleged homophilic dependence and friendship with another brother which resulted in considerable emotional conflicts and he decided to seek psychiatric treatment. He had since been in psychiatric treatment. The examiner noted that the veteran impressed him as a schizoid individual with some paranoid tendencies. The examiner noted there was insufficient evidence to establish a clinical diagnosis of a schizophrenic reaction. In a January 1974 letter, Peter Giovacchini, M.D., discussed his treatment of the veteran for a neurosis, and advised that he was basically paranoid. A November 1984 VA special psychiatric examination concluded in a diagnosis of borderline personality disorder. In his March 1985 letter, Robert M. Galatzer-Levy, M.D., noted that he had treated the veteran from 1979 to 1982 for a chronic paranoid psychosis. The additional evidence which has been submitted since the November 1986 RO rating decision will be summarized below. In a February 1992 letter, Michael Denson, M.D., noted he did not believe the veteran's psychiatric illness was directly related to the treatment received for pulmonary tuberculosis. The veteran provided testimony at hearings held at the RO in March and May 1992. He reiterated his belief that his psychiatric problems were directly related to his treatment for service-connected pulmonary tuberculosis. The appellant noted that he terminated treatment with Dr. Denson because his observations of his condition were objectionable. After a review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the RO's previous rating decision in November 1986 remains final. "New and material evidence" means "evidence not previously submitted...which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, 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. § 3.156(a). The additional evidence constituting the hearing testimony is "new" in the sense that it is not cumulative of prior evidence already of record. Nonetheless, it is basically a reiteration of previously advanced contentions. The correspondence from Dr. Denson is also to some extent "new" in that it constitutes an opinion dissociating any connection between treatment of the service-connected pulmonary tuberculosis and the veteran's development of chronic psychiatric disability. The above evidence taken collectively is not "material" because there is no reasonable possibility that when it is considered in the context of all the evidence, both new and old, it would change the outcome of the November 1986 decision denying service connection for a psychiatric disorder. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this regard, the Board takes notice that the evidence, particularly the opinion from Dr. Denson, refutes the veteran's contention advanced in connection with his attempt to reopen his previously denied claim. Dr. Denson pointed out, among other things, that the veteran had a severe character disorder with narcissistic and histrionic features, the symptoms of which included paranoia, grandiosity, mood fluctuations and impairment of many aspects of interpersonal functioning. He noted that whatever the genesis of the veteran's psychiatric problems, the damage had already been done by the time he was five years old, even though the illness was not quite manifest until adulthood. Dr. Denson acknowledged that a scenario could be constructed where a psychotic disorder exacerbated the veteran's underlying personality disorder, but he did not believe that this was the veteran's case, and as noted above, did not believe there was any causal link between the veteran's treatment for his pulmonary tuberculosis and the development of chronic psychiatric disability. The Board observes that the additional evidence has in effect reinforced the previous evidence of record in which it is now clarified or reiterated that the veteran has had a personality disorder which is not a disability under the law, that his psychosis was not shown in service or for many years thereafter, and most important of all that no psychiatrist has linked the veteran's psychiatric disability, no matter how classified, with his service-connected pulmonary tuberculosis. The additional evidence in no way refutes the RO's conclusion in November 1986 that service connection is not warranted for a psychiatric disorder. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, the benefit sought on appeal is denied. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.