Citation Nr: 0005385 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-06 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from December 1939 to July 1941 and from September 1942 to May 1943. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In September 1999, a videoconference hearing was held before a Member of the Board. The undersigned Member was designated by the Chairman of the Board to conduct such a hearing. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was last denied by the Board in April 1991. Service connection had previously been denied by final rating action of December 1943 and by the Board in July 1985. 2. The evidence associated with the claims file since the 1991 Board decision is not so significant that it must be considered in order to fairly decide whether the appellant is entitled to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The Board's April 1991 decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. §§ 5104, 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence has not been submitted to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156(a), (c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the appellant has submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder. The Board last denied the appellant's claim in April 1991 on the basis that the record did not show a nexus between the current disorder and any incident or incurrence in service. At that time it was noted that new and material evidence had not been submitted since a July 1985 Board decision. That decision held that there was no new and material evidence submitted since a December 1943 final rating action. Evidence considered has included service medical records; an August 1943 VA neuropsychiatric examination; a February 1983 statement from Dr. J. Carter; a lay statement from Jimmie Thompson; private treatment reports from 1984 and 1985; a March 1990 VA examination; and a transcript of hearing testimony given by the appellant in August 1990. The Board concluded that there was no evidence of a nexus between the appellant's acquired psychiatric disorder, diagnosed approximately forty years after service, and any incident or event in service. It was held that evidence submitted did not warrant reopening of the previously denied claim, and the denial was continued. When the Board denies a claim, the denial becomes final unless the Chairman determines that reconsideration is warranted, or if another exception to finality is applicable. 38 U.S.C.A. §§ 7103(a), 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). In the present case, the appellant did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999), (Court) and accordingly, the Board's April 1991 decision is final. A final decision may not be reopened and readjudicated by the VA, except on the basis of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide the merits of the claim fairly. 38 C.F.R. § 3.156(a) (1999). A three-pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1999). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Second, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and third, a determination must be made as to whether the evidence "is so significant that it must be considered in order to decide fairly the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, 155 F.3d at 1359. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). With the above-cited facts and law for consideration, the Board will not reopen this claim. When read together with the appellant's contentions on appeal, the Board concludes that the evidence submitted or associated with the record since the April 1991 decision is not so significant that it must be considered in order to decide the merits of the claim fairly. The appellant's Honorable Discharge certificate, which shows that his separation point was the Station Hospital at Jackson Barracks, Missouri, is cumulative of evidence that was before the Board in April 1991. Further, it does not mention any psychiatric disorder, and thus, is not probative. Accordingly, it provides no basis to reopen this claim. Moreover, the Board finds that the appellant's pleadings and statements, to include his hearing testimony of September 1999, essentially reiterate his previously considered contentions with respect to the claimed disability, and as such are not considered to be new. See Reid v. Derwinski, 2 Vet. App. 312 (1992). To the extent that the appellant contends that he has a disability that was incurred in service, such statements, being in effect lay speculation on medical issues involving the presence or etiology of a disability, are not probative to this claim and, therefore, are deemed to be not material. See Pollard v. Brown, 6 Vet. App. 11 (1993) (pursuant to Espiritu v. Derwinski, 2 Vet. App. 492 (1992), lay testimony attempting to diagnose frostbite or arthritis in service held not to be competent evidence for such purpose, and thus material); see also, Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). Accordingly, the Board concludes that the appellant has not submitted evidence which is new and material such as to form the basis to reopen and review the previously denied claim seeking entitlement to service connection for an acquired psychiatric disorder. VA is obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of the kind of evidence needed to reopen a previously denied claim. See Graves v. Brown, 8 Vet. App. 522 (1996). However, this obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995), which depends further upon VA having notice that relevant evidence may exist or could be obtained. See also Franzen v. Brown, 9 Vet. App. 235 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration). However, in this case, there is nothing in the record that suggests the existence of available evidence that might provide a basis to reopen one or more of the aforementioned claims. Specifically, there is no indication that any outstanding medical records would provide the necessary nexus between the current psychiatric disorder and service. Thus, as the Secretary's obligation under section 5103(a) has been complied with, to the extent possible, further development by VA is not required or indicated at this time. ORDER New and material evidence sufficient to reopen the claim for service connection for an acquired psychiatric disorder not having been submitted, the benefits on appeal remain denied. MICHAEL D. LYON Member, Board of Veterans' Appeals