BVA9504830 DOCKET NO. 93-03 348 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for schizophrenia. 2. Whether new and material evidence has been presented to reopen a claim for chest pain claimed as asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from January 1968 to December 1969. A Department of Veterans Affairs (VA) Regional Office (VARO) rating decision dated in June 1972 denied the veteran's claim for service connection for a schizophrenic reaction. The veteran was notified of this decision via letter that same month. The record reflects that he did not appeal the VARO's action and, consequently, the decision of the VARO in 1972 has become final. A VARO rating decision dated in February 1975 denied the veteran entitlement to service connection for claimed chest pain on the grounds that there was no evidence of organic pathology to account for the chest pain. He was informed of this decision in a letter dated in that same month. The record reflects that the veteran did not appeal the denial of this claim and, therefore, the decision of the VARO in 1975 has become final. The issues as to whether the veteran has submitted new and material evidence to reopen his claims for service connection for a psychiatric disorder and chest pain, claimed as asthma, are currently before the Board on appeal from a September 1991 decision of the VARO in St. Petersburg, Florida. The Board notes that the veteran's representative, on a VA Form 1-646 dated in February 1993, argued that the issue of service connection for a psychosis for purposes of receiving medical treatment, under the provisions of 38 C.F.R. § 17.33 (1994), should also be adjudicated by the Board. Review of the claims folder reveals that the issue of service connection for a psychosis for purposes of treatment has not been specifically adjudicated by the VARO and, consequently, is not before the Board at this time. It is referred to the VARO for consideration deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL With respect to the claim for service connection for a psychiatric disorder it is contended, essentially, that evidence received into the claims folder since the VARO denied the veteran's claim in June 1972 is both new and material to the claim and, therefore, the claim should be reopened. Additionally, it is argued that the total evidentiary record demonstrates that a psychosis, in the form of paranoid schizophrenia, manifested itself to a degree of 10 percent within one year of the veteran's separation from service and, therefore, service connection for his psychiatric disorder is warranted. With respect to the claim for service connection for pathology manifested as chest pain, specifically asthma, it is argued, essentially, that evidence submitted since the VARO denied the veteran's claim in February 1975 is new and material and, therefore, the claim should be reopened. It is also alleged, in essence, that the veteran had asthma attacks in service and, therefore, service connection for asthma, as the pathology manifested by chest pains, should be allowed. 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 new and material evidence to reopen claims for service connection for schizophrenia, and chest pain claimed as asthma, has not been submitted and, consequently, the veteran's claims for service connection for each disorder are not reopened. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the VARO. 2. An VARO rating decision dated in June 1972 denied the veteran's claim for service connection for a schizophrenic reaction, and the veteran did not appeal this decision. The additional evidence submitted since 1972 is cumulative in nature and does not raise the reasonable possibility of changing the outcome of the VARO's prior determination. 3. An VARO rating decision dated in February 1975 denied the veteran's claim for service connection for chest pain pathology, and the veteran did not appeal this decision. The additional evidence submitted since 1975 is not new and material to the claim and does not raise the reasonable possibility of changing the outcome of the VARO's prior determination. CONCLUSIONS OF LAW 1. The decision of the VARO in June 1972 denying service connection for schizophrenic reaction is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 7105 (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.307, 3.309 (1994). 2. Evidence received since the VARO denied entitlement to service connection for schizophrenic reaction in June 1972 is not new and material, and the veteran's claim for this benefit is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). 3. The decision of the VARO in February 1975 denying service connection for pathology manifested as chest pain is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 7105 (West 1991); 38 C.F.R. § 3.303(b)(d) (1994). 4. Evidence received since the VARO denied entitlement to service connection for pathology manifested as chest pain in February 1975 is not new material, and the veteran's claim for this benefit is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded. That is, they are plausible and capable of substantiation. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Schizophrenia A. The Law and Regulations with Respect to the Submission of New and Material Evidence The VARO in a rating decision dated in June 1972 denied the veteran's claim for service connection for schizophrenia, but he did not file a notice of disagreement after notification. If no notice of disagreement is filed the determination shall become final. 38 U.S.C.A. § 7105 (West 1991). Consequently, that decision has become final. Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary shall reopen a finally disallowed claim and review the former disposition if new and material evidence is presented or secured with respect to the claim. On claims to reopen, the Board must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". If it is, then the Board must adjudicate the claim on the basis of all the evidence, both new and old. Jones v. Derwinski, 1 Vet.App. 210 (1991). New and material evidence means evidence not previously submitted to agency decisionmakers 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) (1994). To be "new" the additional evidence must be more than merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95 (1993). "Material" evidence is that which is relevant to and probative of the issue at hand, and of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Justus v. Principi, 3 Vet.App. 510 (1992). The United States Court of Veterans Appeals (Court) in the case of Justus v. Principi, 3 Vet.App. 510, 513 (1992) held that in determining whether evidence is new and material the credibility of the evidence is to be presumed. The Court went on to state that: This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. Justus, 3 Vet.App. at 513. The Court went on to emphasize that its application of the presumption did not constitute an endorsement of "either the weight or the credibility" of the evidence in question, and that the determination of the weight and credibility of the evidence "is a question of fact for the Board to decide upon reopening and readjudication with a statement of reasons or bases for its findings." Justus, 3 Vet.App. at 513. Thus, the preliminary question to be answered in this case is whether the evidentiary record contains new and material evidence which would justify a reopening of the claim, and a review of the former denial by the VARO. 38 U.S.C.A. § 5108 (West 1991). B. Discussion In order to determine whether evidence submitted by the appellant into the record is new and material, it is first necessary to review the evidence that was of record in June 1972 when the VARO initially considered the claim and denied it. The veteran, in June 1972, was seeking service connection for his psychiatric disorder, which had been identified as schizophrenia, on the basis that the disorder had manifested itself to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.307, 3.309(a) (1994). The VARO in June 1972 denied the veteran's claim on the basis that the service medical records were absent of complaints, findings, or diagnoses of any psychiatric disorder and that the post service clinical records indicated that the first manifestation of schizophrenia was in January 1972. It was in January 1972 when the veteran was hospitalized for the first time after he had threatened some family members. He was found to have schizophrenia and was subsequently declared incompetent. There is no history of prior psychiatric problems. As the veteran separated from service in December 1969, the date of January 1972 was beyond the one year presumptive period provided by law for the grant of service connection on a presumptive basis. Since the VARO's denial of the claim in June 1972 the veteran has, over the years, submitted into the record multiple clinical records from VA and private facilities that demonstrate that he has received treatment for schizophrenia after 1972. The pertinent evidence received after 1972 refers to treatment and hospitalization for schizophrenia between 1980 and 1989. None of the clinical evidence submitted after 1972 tends to establish that the veteran's psychosis was present in service or within one year of separation from service. It does not raise a reasonable possibility, that when considered in light of all the evidence of record, would change the outcome of the RO's prior decision. Although, on VA claim forms dated in October 1974 and November 1980, the veteran alleged he was treated in service in 1968 for a nervous disorder, the veteran has never provided any details of such treatment, nor do the service medical records support the veteran's allegations. Without any other clinical evidence to denote the type of treatment received or administered in service, the veteran's allegations, by themselves, cannot be considered competent evidence to establish the presence of a psychosis in service. The veteran is not trained in medicine, and therefore not competent to offer evidence establishing a medical fact. Espirtu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, the allegations alone offer no possibility of changing the VARO's prior decision. Since the evidence that the veteran has produced in conjunction with his attempt to reopen his claim for service connection for schizophrenia is not new and material, the claim cannot be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). II. Whether New and Material Evidence has been Submitted to Reopen a Claim for Service Connection for Organic Pathology Manifested by Chest Pain The VARO in February 1975 denied the veteran's claim for service connection for organic pathology manifested by chest pain. In order to determine whether evidence submitted into the record by the veteran since February 1975 is new and material for the purpose of reopening his claim, it is first necessary to review the evidence that was before the VARO in February 1975. The veteran in 1975 was claiming he had some organic pathology that was causing him to have chest pains, and was alleging that he had previously had chest pains in service. The service medical records confirmed that the veteran in 1968, and just prior to discharge from service in October 1969, had complained of chest pains. However, service physical examinations in both 1968 and 1969 found no organic basis for the veteran's complaints. The report of the separation examination dated in October 1969 listed the veteran's heart, lungs, and chest as normal. The examination included radiographic studies of the veteran's chest. The report of the medical history provided by the veteran in August 1967 prior to his entrance into service shows that he responded in the affirmative to the question as to whether he had ever had asthma. However, the rest of the records were negative for complaints, findings, or diagnoses of asthma during service. Also, the post service medical records were negative for any organic chest pathology. In January of 1973 the veteran complained of heart symptoms. A chest X-ray accomplished at a VA hospital in January 1973 produced a finding of a normal chest. Interpretation of the results of an electrocardiogram (EKG) accomplished at the same facility reported findings within normal limits. In view of the absence of any clinical pathology on record denoting any chronic chest pathology in service, the VARO in February 1975 denied the veteran's claim. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. § 3.303 (1994). The veteran is now alleging, essentially, that his complaints of chest pain in service were due to asthma attacks therein and that his claim for service connection for asthma should be reopened and allowed. In support of this contention, medical records from G. Pierce Wood Memorial Hospital dated in June 1988 have been submitted into evidence. These denote a history of asthma since childhood and a current diagnosis of asthma based on history. The evidence is new in the sense that it was not available when the original decision was rendered in 1975. However, the evidence is essentially cumulative and repetitive in nature. Therefore, it is not new and material for the purpose of reopening the claim. Additionally, inasmuch as these records contain no information indicating that the veteran currently has a chronic asthma disorder that either arose in, or that was aggravated by service, this evidence does not contain the reasonable possibility of changing the VARO's prior decision. That is, it is not new and material to the veteran's claim. Although, the veteran on a VA Form 21-4138 dated in August 1991 has alleged he sustained asthma attacks in service, he has not provided details of such treatment, nor do the service medical records support the veteran's allegations. Without any other clinical evidence to denote the type of treatment received or administered in service, the veteran's allegations, by themselves, cannot be considered competent evidence, as the veteran is not competent to give evidence to establish a medical fact. Espirtu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, lay allegations alone, particularly when they are submitted to establish a medical fact do not offer the reasonable possibility of changing the VARO's prior decision, that is, they are not material to the claim. Since the evidence that the veteran has produced in conjunction with his attempt to reopen his claim for service connection for organic pathology manifested as chest pain is not new and material, the claim cannot be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). In reaching all the decisions in Sections I & II herein, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) with respect to affording the veteran the benefit of any doubt. However, the evidentiary record is not in equipoise in its positive and negative evidence so as to warrant resolution of these matters on the basis of reasonable doubt. ORDER New and material evidence not having been submitted, the claim for service connection for schizophrenia is not reopened. New and material evidence not having been submitted, the claim for service connection for organic pathology manifested as chest pain is not reopened. JOAQUIN AGUAYO-PERELES 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.