Citation Nr: 0002597 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-05 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from September 1970 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. A final November 1996 decision of the Board had denied reopening of a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. FINDINGS OF FACT 1. In a decision of November 1996, the Board found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 2. Evidence presented or secured since the November 1996 Board decision is not new and is not so significant that it must be considered in order to fairly decide the merits of the veteran's claim. CONCLUSIONS OF LAW 1. The November 1996 Board decision denying entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. Evidence received since the November 1996 Board decision denying entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not new and material, and the veteran's claim has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred or aggravated in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where a veteran who served for 90 days or more during a period of war develops a psychosis to a degree of 10 percent or more within one year from separation from such service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1999). A Board decision is final when issued. 38 U.S.C.A. §§ 7103, 7104 (West 1991). However, 38 U.S.C.A. § 5108 states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). In this case, as there is a prior final Board decision in November 1996, the claim may not be reopened and allowed unless new and material evidence is presented or secured. Consequently, the evidence that must be considered in determining whether there is a basis for reopening this claim is that evidence added to the record since the November 1996 Board decision, the last disposition in which the appellant's claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Elkins v. West, 12 Vet. App. 209 (1999) (en banc) (1999); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then, immediately upon reopening the veteran's claim, VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. "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 the 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); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Accordingly, the Board will consider whether new and material evidence has been submitted in accord with the holding in Hodge, supra. The RO advised the veteran of the standard for new and material evidence, including the text of 38 C.F.R. § 3.156(a) in the March 1998 statement of the case; however, in the same statement of the case, the RO also advised the veteran that the standard for reviewing whether there was new and material evidence included the "reasonable possibility of changing the outcome" test (see Colvin v. Derwinski, 1 Vet. App. 171 (1991)). However, the Board finds that appellant review at this time causes no prejudice to the veteran because the Board's review of the claim under the more flexible Hodge standard accords the veteran a less stringent "new and material" evidence threshold to overcome. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993); see also Fossie v. West, 12 Vet. App. 1 (1999). The evidence which was of record at the time of the prior final disallowance of the veteran's claim by the Board in November 1996 included service medical records, which did not reveal any psychiatric treatment, including a separation examination which did not note any complaints, findings, or diagnoses of any psychiatric disorders. The remaining evidence which was of record in November 1996 is summarized below. Treatment notes from the Wayne Correctional Center from January 1981 until March 1982 revealed that the veteran was diagnosed with schizophrenia, simple paranoid type, by history, in January 1981. There were no findings or diagnoses as to PTSD. Records from the Dorothea Dix Hospital and the Cherry Hospital show that, in October 1975, the veteran had been admitted to the Dorothea Dix hospital for evaluation of competency to stand trial on a charge of assault with a deadly weapon, and was found competent to stand trial, and diagnosed with acute schizophrenic episode, treated, improved. The hospital records reflected that he reported, for historical purposes, that he had had trouble with his nerves since leaving service in 1973. In May 1976 the veteran was admitted to the Cherry Hospital, in a hospitalization compelled by the court. The psychiatric impression was personality disorder, antisocial. The treatment records showed no history of medical treatment earlier than July 1975. Treatment notes from October 1976 until February 1984 from the North Carolina Department of Corrections revealed that the veteran was referred to the Mental Health Clinic at Central Prison numerous times. The veteran was diagnosed in August 1977 with catatonic schizophrenia in fair remission, in November 1980 with schizophrenia, paranoid type, and in November 1984, with schizophrenia, chronic, paranoid type. There were no findings or diagnoses of PTSD. As an outpatient at Southeast Mental Health from March 1984 until January 1985, the veteran was diagnosed, in pertinent part, with alcohol abuse, episodic; schizophrenia, catatonic in remission; and anti-social personality disorder. There were no findings or diagnoses of PTSD. In November 1984, the veteran was admitted to Cherry Hospital, where he was diagnosed with schizophrenia, paranoid type, and antisocial personality disorder. There were no findings or diagnoses of PTSD. In February 1985, the veteran was hospitalized and a VA psychological evaluation was administered. The diagnoses were schizophrenia, paranoid type in partial remission, and mixed personality disorder with paranoid and antisocial features. There were no findings or diagnoses of PTSD. In July 1985, the veteran was admitted to Southeastern Mental Health requesting medication that he had received in prison. He was diagnosed with alcohol abuse, episodic; schizophrenia catatonic, in remission; and antisocial personality disorder. There were no findings or diagnoses of PTSD. In August 1985, a Social Security Administration decision was received. The records reflected the diagnosis of paranoid schizophrenia, and there was ample evidence of alcoholism, drug addiction, and antisocial acting out. The veteran was found to be "disabled." Reference was made to records showing treatment no earlier than July 1975, with reported onset of symptoms 2 months previous. A discharge summary, dated in May 1985, from the Mental Health Clinic at Central Prison was received in August 1985. The veteran was referred to the facility because he was described as homicidal, paranoid and experiencing auditory hallucinations. The veteran was diagnosed with schizophrenia, paranoid type. There were no findings or diagnoses of PTSD. In September 1985, the veteran was seen at VA. He was not found to be suicidal or a threat to others, and was diagnosed with psychosis, compensated, on medication, and personality disorder. There were no findings or diagnoses of PTSD. During a VA walk-in examination in December 1985, the veteran stated that he felt paranoid at times, and that he did not have a history of depression, disturbance of sleep, or PTSD. He was diagnosed with paranoid schizophrenia, controlled with medication, and antisocial personality disorder. There were no findings or diagnoses of PTSD. In March 1986, medical records from the Wayne Correctional Center, dated in May 1983, were received, which reflect that the veteran was found to have an underlying pervasive paranoia. He was diagnosed with paranoid schizophrenia (by history), in remission, and antisocial personality. There were no findings or diagnoses of PTSD. In April 1986, a VA examination was administered, which resulted in diagnoses of schizophrenia, paranoid type, and history of personality disorder. There were no findings or diagnoses of PTSD. In August 1986, Antonio E. Puente, Ph.D., a clinical neuropsychologist, submitted a declaration in which he found that the veteran suffered from paranoid schizophrenia. There were no findings or diagnoses of PTSD. At a personal hearing in August 1986, the veteran testified that: he was under a lot of stress while in service in Iran; he had been shot at, involved in fights, injured in a jeep accident and, on one occasion, found glass in his food; and that this was the beginning of his troubles with the law. In February 1987, the veteran's sister and Vermice C. Gore submitted letters wherein they stated that the veteran was enrolled in college in 1973 and 1974 and had to leave because he was suffering from mental illness. In a letter in January 1992, the veteran wrote that his mental problems began because of all that he endured while being stationed in Iran. He also, in various letters, alluded to stressful incidents he experienced while serving in Iran and after his return to the United States. In February 1992, the veteran submitted an article from DAV magazine titled "PTSD: Treating the Trauma of War." Also submitted were medical records of treatment in the 1970s and 1980s, which the Board found were duplicates of those already in the claims folder. In a November 1996 decision, the Board denied a request by the veteran to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, finding that the veteran had not presented new and material evidence. The Board's decision included the findings that the additional evidence did not demonstrate that the veteran was currently suffering from PTSD, and did not show that the veteran had a psychiatric disorder which had its onset in service or within one year of service. A Board decision is final when issued. 38 U.S.C.A. §§ 7103, 7104. Pertinent evidence added to the record since the November 1996 Board decision includes various written statements from the veteran. In various statements submitted since the November 1996 Board decision, the veteran wrote that: his mental condition started in the Army but did not manifest itself until after service in 1975; a psychiatrist had written that his "nervous condition" began in 1975, about 18 months after service separation; he experienced having a bullet fired at him in a park, glass found in his food, and a jeep accident; and the enemy conducted psychological warfare in the Middle East. He submitted names of service members with whom he had served in Teheran, Iran. In the veteran's case, no competent medical evidence has been added to the record since November 1996 relating his currently diagnosed psychiatric disorders (schizophrenia, anti-social personality disorder, alcohol abuse) to any incident or manifestation during his period of active service, including claimed events in the Middle East or Iran. Likewise, no competent medical evidence has been added to the record since November 1996 to demonstrate a current diagnosis of PTSD, or finding that the veteran's claimed or reported symptoms are etiologically related to service. The evidence already of record in November 1996 included the veteran's assertions and histories pertaining to a mental condition having started in the Army, including glass found in his food, having been shot at, and involvement in a jeep accident, and other stressful events in service in Iran, and that his psychiatric disorder did not manifest until after service in 1975, about 18 months after service separation. In that regard, the Board finds that the newly received evidence is cumulative of evidence already of record and is, therefore, not "new." Moreover, none of the additional evidence links currently diagnosed paranoid schizophrenia, personality disorder (including anti-social), or alcohol abuse with the remote events of service, so the additional evidence is not "material". The Board notes the veteran's continued expression of his belief that his currently diagnosed psychiatric disorders are etiologically related to service, and that he currently has PTSD. However, it is the province of health care professionals to enter conclusions which require medical opinions, such as a current diagnosis or an opinion as to the relationship between a current disability and service or reported continuous post-service symptomatology. The veteran's lay opinion does not present a sufficient basis to establish the required nexus, and so his statements lack probative value and are not material. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). With regard to the veteran's assertion that about what a psychiatrist had written about the onset of his "nervous condition" in 1975, the Court has held that a veteran's account, "filtered as it [is] through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). That statement is thus not material. For these reasons, the Board must find that evidence received since the Board's decision in November 1996 is not of sufficient significance that it must be considered in order to fairly decide the merits of the veteran's claim. The additional evidence is not new and material, and the veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the appeal is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals