Citation Nr: 0006564 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-17 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for an acquired neuropsychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from November 1975 to January 1976. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a February 1998 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A petition to reopen a claim for service connection for a psychiatric disorder was denied in an October 1996 Board decision. This decision was affirmed by the U. S. Court of Appeals for Veterans Claims in September 1998. 2. The evidence submitted in support of the petition to reopen the claim for service connection for an acquired psychiatric disorder is cumulative. CONCLUSION OF LAW The October 1996 Board decision denying service connection for a psychiatric disorder is final. New and material evidence sufficient to reopen the claim has not been received. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for conversion-type neurosis was denied in an October 1976 rating decision. The Board denied service connection for neurosis on appeal in December 1977. In an October 1996 decision, the Board found that new and material evidence had not been submitted to reopen the claim for service connection for a psychiatric disorder. This decision was affirmed by the U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veteran's Appeals prior to March 1, 1999) (hereinafter Court). The claim on appeal stems from a February 1998 rating decision wherein the RO found new and material evidence had not been submitted to reopen the claim for service connection for a psychiatric disorder. The October 1996 Board decision is final. In addition, the decision was affirmed by the Court. When the Board disallows a claim, the claim may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b) (West 1991). The claim may be reopened only if new and material evidence is presented or secured. 38 U.S.C.A. § 5108 (West 1991). On claims to reopen previously and finally disallowed claims, the Board must first determine whether the veteran has presented new and material evidence. 38 C.F.R. § 3.156 (a) (1999). New and material evidence means evidence not previously submitted to the agency decisionmakers which bears directly and substantially upon the specific matter under consideration. It is neither cumulative nor redundant and 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. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based on all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107 (a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107 (b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999). The evidence before the Board at the time of the prior October 1996 denial is summarized as follows: Service medical records included a normal psychiatric evaluation in October 1975. The appellant was seen in the VA Medical Center in April 1976 complaining of insomnia, nightmares, forgetfulness, hearing voices and nervousness that he attributed to basic training experiences. He was referred to the psychiatry service. He received outpatient psychiatric treatment beginning in May 1975 for what was characterized as a nervous condition. The appellant hospitalized in June 1976 and discharged against medical advice in July 1976 with a diagnosis of anxiety neurosis, rule-out schizophrenia. He was readmitted for acute undifferentiated schizophrenia in July 1976 and discharged against medical advice in August 1976. A September 1976 psychiatric VA examination was of record. The appellant's hospitalization in July 1976 with a tentative diagnosis of schizophrenic reaction was noted. It appeared the appellant was maladjusted to army life. There was no evidence of a fully organized psychotic condition. He was diagnosed with a conversion-type psychoneurosis at times bordering on malingering. The massive amnesia was almost difficult to believe. He received outpatient treatment for an anxiety reaction and marginal adjustment in 1977. A service examination in January 1978 noted a normal psychiatric evaluation. The appellant reported a history of nervous trouble. A sick slip was issued in June 1980 for "nervous" found in line of duty. Chronic schizophrenia was noted in January 1993. A diagnosis of rule-out chronic, paranoid type schizophrenia was made in August 1993. A diagnosis of rule- out depression not otherwise specified with paranoid features was made in October 1993. The appellant gave testimony before the RO in December 1994 wherein he contended that his psychiatric disorder was attributable to service. He had no nervous problems prior to service. During basic training he fell and had to seek medical treatment. His instructors accused him of being trying to avoid work and that in addition to the pressures of basic training led him to become aggressive in his dealings with his instructors. He later served with the National Guard and liked it until one of the officers put pressure on him and he attacked him. Evidence associated with the claims folder in relation to the claim for service connection for an acquired psychiatric disorder since the October 1996 Board decision consisted of the following: The appellant's brother wrote a letter dated in September 1996. The appellant belonged to a family of veterans. He was currently very sick with a nervous condition and the VA hospital had refused to hospitalize him. The appellant was living by himself without any assistance, as both parents were dead. He was living in very bad conditions. He had no money to travel to Washington or to pay for water or electricity. The appellant was admitted to the VA Medical Center in April 1997. He complained of feeling anxious, irritated, and depressed. He reported anhedonia and insomnia. He was hearing voices telling him he should be dead. On examination he was in contact with reality, not suicidal, not homicidal, and able to choose right from wrong. He was euthymic without psychotic symptoms. He was alert and oriented to person, place and time and with superficial insight. His discharge diagnosis was schizoaffective disorder, depressed type. A psychiatric evaluation was conducted in October 1997. The history provided by the appellant and his brother indicated that he had a psychiatric condition since 1976, a short time after his discharge from active duty. After a partial recovery from active symptoms, he joined the National Guard but faced a lot of problems with others and was courts martialed. He was diagnosed with chronic, undifferentiated schizophrenia. He was said to be chronically schizophrenic and had initiated his psychopathology as an anxiety neurosis. He had been receiving antipsychotic medications that were prescribed to patients with major psychiatric disorders and not to those with anxiety neurosis. An October 1997 OHA psychiatric review (unsigned) found evidence of paranoid schizophrenia and other psychotic disorders. In determining whether the appellant has submitted new and material evidence, the Board must consider the basis of and the reasons for the previous denial. In the October 1996 Board decision, the Board looked to the prior December 1977 Board decision that had denied service connection for an acquired psychiatric disorder. At the time service connection was denied, no psychiatric disorder had been diagnosed in service. An acquired neuropsychiatric disorder was first shown several months following discharge. The appellant was not entitled to presumptive service connection for a psychosis as he served on active duty for less than 90 days. See 38 C.F.R. §§ 3.307, 3.309. The Board found in October 1996 that evidence submitted to reopen the claim for service connection, although in part nonduplicative of prior evidence, failed to demonstrate that a psychiatric disorder was incurred in or aggravated by military service. The Court affirmed the Board decision. The Court held that the evidence submitted since the Board's December 1977 decision failed to supply medical evidence establishing a nexus between the appellant's current psychiatric condition and his military service. The Court further noted that is was harmless error for the Board to fail to consider whether the claimed conditions were incurred in or aggravated by his service in the National Guard as a new claim, as the appellant had not established basic eligibility for veterans benefits for that period of service. In other words, at the time of the prior final denial in October 1996, evidence of the incurrence of a psychiatric disorder during the appellant's active service had not been presented; the appellant did not have 90 days or more of active duty for the Board to consider presumptive service connection for schizophrenia; and no competent medical evidence linked his post-service psychiatric diagnoses to his period of active service. The Board now finds that the evidence submitted since the prior final denial in October 1996 does not cure the evidentiary defects that existed at the time of that decision. The appellant's brother submitted a letter that details the appellant's current living conditions. This is not grounds for reopening a finally denied claim. It is not relevant to the issue of whether a psychiatric disorder was incurred in or aggravated by service. Additional medical evidence of post-service treatment or diagnosis of schizophrenia is cumulative of a previously known fact; that the appellant developed a psychiatric disorder after service. Additional testimony or evidence that confirms a previously known fact is cumulative and not new and material. Sagainza v. Derwinski, 1 Vet. App. 575, 579 (1991); Godwin v. Derwinski, 1 Vet. App. 419, 424 (1991). The psychiatric evaluation in October 1997 is not new and material evidence. The psychiatric history as provided by the appellant or his brother reiterates the appellant's prior contentions and testimony. This recounting is not new. Additionally, lay assertions of medical causation cannot suffice as new and material evidence to reopen a claim. Hickson v. West, 11 Vet. App. 374 (1998). The examiner stated that the appellant reported receiving medications that would be prescribed for major psychiatric disorders and not anxiety neurosis. It is unclear whether the examiner was implying that the June 1976 post-service diagnosis of anxiety neurosis, rule-out schizophrenia was improper. Even if so, the examiner's assertion that schizophrenia should have been diagnosed one month earlier does not change the fact that the appellant was not entitled to presumptive service connection and is not new and material. The 1997 private medical statement tends to repeat known facts. The veteran has a current psychiatric disorder and a psychiatric disorder was first identified post service. The fact that a different examiner confirms previously known facts does not constitute new and material evidence. The evidence is cumulative. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, No. 99-7019 (Fed. Cir. 1998). Nothing added to the record since the last decision cures any of the prior evidentiary defects. There remains no competent evidence of a psychiatric disorder during service and no competent evidence providing a nexus to service. Absent new and material evidence, the petition to reopen the claim for service connection for an acquired psychiatric disorder is denied. As the issue of whether new and material evidence is a sequential analysis, the Board does not proceed to a determination of well groundedness or whether the duty to assist has been met. Elkins, 12 Vet. App. at 209; and Winters, 12 Vet. App. at 203. Similarly, the doctrine of doubt is not for application since there is no evidence to balance at this time. ORDER The petition to reopen the claim for service connection for an acquired psychiatric disorder is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals