BVA9504955 DOCKET NO. 93-11 420 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran had active military service from April 1967 to April 1969. This matter arises from various rating decisions rendered since April 1992 by the Waco, Texas, Regional Office (RO). In the aggregate, these held that new and material evidence had not been submitted in conjunction with the veteran's current claim regarding entitlement to service connection for post-traumatic stress disorder, and that, therefore, the claim had not been reopened. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the Department of Veterans Affairs (VA) erred in denying him the benefit sought on appeal. He asserts that while serving in the Republic of Vietnam, he experienced a number of stressful incidents that were sufficient in nature to give rise to the disability now claimed. He further asserts that the clinical evidence of record confirms the presence of post- traumatic stress disorder. He argues that, in this respect, all reasonable doubt must be resolved in his favor. Alternatively, he contends that he should be accorded further psychiatric examination by a board of psychiatrists to reconcile the current conflict in the psychiatric diagnoses of record prior to final appellate review. DECISION OF THE BOARD The Board of Veterans' Appeals (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 new and material evidence has not been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal is of record. 2. The Board of Veterans' Appeals denied the veteran service connection for post-traumatic stress disorder in March 1989. The additional evidence submitted since then includes reports of the veteran's private and VA medical treatment, and testimony offered by the veteran and his spouse at a hearing before a traveling member of the Board. This evidence does not significantly alter the facts previously considered, and does not raise a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. The March 1989 decision by the Board which denied service connection for post-traumatic stress disorder is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1994). 2. The evidence received since the Board's March 1989 decision which denied service connection for post-traumatic stress disorder is not new and material, and the veteran's claim with regard thereto is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes, first, that the evidence of record is sufficient to fairly decide the issue on appeal. The veteran's contention that further psychiatric studies should be undertaken prior to appellate disposition is without merit. As will be demonstrated, the evidence of record does not relate post-traumatic stress disorder to the veteran's military service. Given this, further resolution of the various psychiatric diagnoses reflected by record would be nothing more than an academic endeavor, and of no benefit to the veteran's claim. Because the Board previously denied the veteran service connection for post-traumatic stress disorder in March 1989, the doctrine of finality as enunciated in 38 U.S.C.A. § 7104(b) and 38 C.F.R. § 20.1100 applies. As such, the first question to be answered is whether new and material evidence has been presented which would justify a "reopening" regarding this disability, as well as a review of the entire record. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In determining whether the veteran has submitted new and material evidence, the Board is guided by the decision in Colvin v. Derwinski, 1 Vet.App. 171 (1991), wherein the United States Court of Veterans Appeals (Court) held that new evidence is evidence which is neither cumulative nor redundant of other evidence of record, and that, to be material, evidence must be relevant and probative of the issue presented. The veteran has contended that post-traumatic stress disorder was incurred in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110. With regard to post-traumatic stress disorder, service connection may be granted if there exists both a stressor in service and a confirmation of that disability following separation from service. Conversely, the absence of either element would be fatal to such a grant. These criteria are defined in greater detail in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 247-251 (3rd ed. rev. 1987) (DSM-III-R). See also 38 C.F.R. § 4.125 (1994). The special feature of post-traumatic stress disorder is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience. The stressor producing this symptom would be markedly distressing to almost anyone, and is usually experienced with intense fear, terror and helplessness. The characteristic symptoms involve reexperiencing the traumatic events, avoidance of stimuli associated with the event or numbing of general responsiveness, and increased arousal. It is within the foregoing legal and medical contexts that both the evidence previously of record and the evidence more recently submitted will be examined. Pertinent evidence which was of record when the Board rendered its March 1989 decision included the veteran's service personnel and medical records, reports of his private medical treatment for the periods from 1978 to 1980 and 1985-1986, various reports of his VA medical treatment, examination and hospitalization during 1987 and 1988, and statements from family members and acquaintances. Service medical records were devoid of any reference regarding complaints or treatment for a psychiatric disorder. During an examination just prior to his separation from military service, the veteran denied depression and nervous problems of any kind. Similarly, reports of his private medical treatment, covering the years 1978 to 1980 and 1985-1986, were silent regarding the presence of any psychiatric abnormality. It was not until early 1987 that the veteran first complained of anxiety during VA medical treatment. In June of that year, a social worker at a Vet Center stated that the veteran displayed significant symptoms of post-traumatic stress disorder which clearly warranted further evaluation. During a VA psychiatric examination conducted in September 1987, the veteran indicated that he had performed security guard duty, and that he occasionally participated in machine-gun patrols, but that he had not come in contact with the enemy, and had not been wounded. He further indicated that while serving in the Republic of Vietnam, he "mostly sat on a roof top with a radio guarding things, buildings, or maybe a general once in a while." He described a series of altercations with fellow soldiers, but stated that during his service in Vietnam, he had seen no combat, was not wounded and was not fired upon. This examination was conducted by a board of three psychiatrists, none of whom diagnosed post-traumatic stress disorder. The veteran was later hospitalized at a VA medical facility in early 1988. Post- traumatic stress disorder was diagnosed; however, no specific stressful incidents were cited. Various sworn statements submitted by the veteran's family members and acquaintances in 1987 attested to the fact that the veteran had not been nervous prior to military service, but had become so subsequent to his discharge. The Board evaluated the foregoing evidence and, in March 1989, held that it failed to demonstrate post-traumatic stress disorder related to the veteran's military service. Pertinent evidence submitted since the Board rendered its March 1989 decision includes reports of the veteran's private medical treatment during the years 1985 to 1992, and various reports of VA medical treatment and hospitalization from 1988 to 1992, in addition to testimony offered by both him and his spouse at a hearing before the Board in April 1993. Although the veteran's VA medical treatment records since 1988 alternately reflect diagnoses of post-traumatic stress disorder and a personality disorder, none of these reports cites the requisite stressor necessary to support the former diagnosis. During treatment at a VA mental health clinic in 1992, the veteran indicated that he had had a nervous breakdown "after getting into a fight and getting into it with his superiors." Taken at face value, the veteran's various statements regarding his experiences in the Republic of Vietnam would tend to discount the presence of a requisite stressor sufficient to give rise to post-traumatic stress disorder. As such, this evidence has no significant effect upon the facts previously considered as it is merely cumulative and redundant. Since the evidence submitted subsequent to the Board's March 1989 denial, when viewed either alone or in conjunction with other evidence of record, does not tend to establish the presence of a stressor during military service as contemplated by DSM-III-R, it is not "new and material" as contemplated by law, and, therefore, insufficient to reopen the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. As a final matter, various statements made by the veteran both during his personal hearing in April 1993 and prior to the Board's March 1989 decision bear mentioning. In conjunction with his prior claim, the veteran stated that his experiences in the Republic of Vietnam included viewing maimed and dead soldiers and civilians and mangled bloody trucks, and that he had often been fired upon while performing long periods of guard duty. He made similar statements during his April 1993 personal hearing. Therein, he indicated that while on guard duty, he had been exposed to sniper fire on a few occasions. The Board finds these statements to be self-serving, and in direct conflict with statements that the veteran previously made to the effect that he had never experienced combat situations. It has only been in conjunction with his claims for benefits that his various references to potentially stressful situations, such as contact with the enemy, have been made. Accordingly, the Board rejects them as being inherently incredible. See West v. Brown, 7 Vet.App. 70, 77 (1994). ORDER Because new and material evidence has not been submitted to reopen the claim, service connection for post-traumatic stress disorder is denied. CHARLES E. HOGEBOOM 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.