BVA9505259 DOCKET NO. 93-10 105 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether the veteran has submitted new and material evidence to reopen his claim for service connection for an organic brain disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran performed active duty from June 1959 to July 1963. In January 1990, the veteran submitted a claim for service connection for "damaged brain cells." In a June 1990 rating decision, the Department of Veterans Affairs (VA), Louisville, Kentucky, Regional Office (RO) denied service connection for that disorder. The veteran was notified of that decision in July 1990 and did not submit a notice of disagreement within one year from the date of notification. In a communication received in November 1991, the veteran said that he wanted to reopen his claim. In May 1992, the RO determined that the veteran had not submitted new and material evidence to reopen his claim. This matter has come before the Board of Veterans' Appeals (Board) on appeal from that determination. CONTENTIONS OF APPELLANT ON APPEAL In substance, it is contended by and on behalf of the veteran that the evidence submitted by him establishes that he has a disability as a result of brain injury received while boxing during service. He asserts that he was told that a code on his discharge certificate established that he had a psychiatric disorder. 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 the veteran has not submitted new and material evidence to reopen his claim for service connection for organic brain syndrome. FINDINGS OF FACT 1. Service connection for brain damage was denied by the RO in June 1990; the veteran was notified of that decision in July 1990 and did not submit a notice of disagreement within one year from the date of notification. 2. Evidence submitted since the June 1990 decision is insufficient to create a reasonable probability of altering the outcome of the prior decisions when considered with the evidence previously of record. CONCLUSIONS OF LAW 1. The June 1990 RO decision denying service connection for brain damage is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994). 2. Evidence submitted since the June 1990 rating decision with respect to organic brain syndrome is not new and material and does not serve to reopen the claim for service connection for organic brain syndrome. (38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The term "service connection" connotes many factors but basically it means that a disease or injury, resulting in disability, was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (1994). In a June 1990 rating decision, the RO denied service connection for brain damage. The veteran was notified of that decision in July 1990 and did not submit a notice of disagreement within one year from the date of notification. With exceptions not here applicable, a notice of disagreement with a determination by the RO must be filed within one year from the date that the agency mails notice of the determination. Otherwise, that determination will become final. 38 C.F.R. § 20.302. Since a notice of disagreement was not filed within the time limit, that decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. To reopen a claim after a final decision, new and material evidence must be submitted. The term "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, 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 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence that is not "merely cumulative of other evidence of record." Evidence is material if 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." Masors v. Derwinski, 2 Vet.App. 181 (1992). When evidence is proffered to reopen a claim, VA personnel must perform a two-step analysis. First, it must be determined whether the evidence submitted by the veteran is new and material, according to the above definition. If the answer is in the affirmative, the case is reopened and considered in light of all evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140 (1991). Not every piece of new evidence, even if relevant and probative, will justify reopening. In order to justify the reopening of a case based on new and material evidence, "There must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Guerrieri v. Brown, 4 Vet.App. 467 (1993). The evidence of record at the time of the June 1990 decision consisted of service medical records, VA outpatient treatment reports and reports of VA hospitalizations dated from November 1969 to January 1988. The service medical records show that the veteran had a septal deviation from injuries received while boxing. A June 1963 separation examination shows no indication of a neurologic or psychiatric abnormality. The service medical records contain no indication of organic brain syndrome or brain damage. The report of the November and December 1969 VA hospitalization shows electroencephalographic abnormalities which were thought to be possibly related to the veteran's career as a boxer. Skull X-rays and a neurological work-up revealed no abnormality. It was felt that there was no significant brain damage. The final diagnosis was paranoid state. Paranoid state was also diagnosed following the VA hospitalizations in April and November 1970, January 1971 and February 1973. Alcohol abuse was diagnosed following the May 1985 VA hospitalization. It was noted that the hospitalizations in 1969 and 1970 were for alcohol abuse or, more correctly, for paranoid feelings and a quick temper which became worse when he drank. Adjustment disorder with depressed mood and alcohol violence syndrome were diagnosed following VA hospitalization in August and September 1985. Adjustment disorder with intermittent explosive behavior and alcohol abuse were diagnosed after the VA hospitalization in November 1985. None of the reports of the foregoing hospitalizations show that organic brain syndrome was considered as a diagnostic possibility. The VA outpatient treatment reports include several records from the mental hygiene center for alcohol abuse and marital difficulties. Those records do not show organic brain syndrome as a diagnostic possibility. Evidence submitted since the June 1990 rating decision includes reports of the VA hospitalizations in November and December 1969 and August and September 1985. These are not new, being duplicates of evidence of record at the time of the prior decision. Other evidence consists of the report of a November 1962 special court-martial, the report of a May 1992 examination by R. K. Riggs, Ph.D., M.D., a transcript of the veteran's testimony at an August 1992 hearing, VA outpatient treatment reports, almost all of which are duplicates of ones of record at the time of the prior decision and the reports of VA examinations conducted in September 1992. The November 1962 court-martial report includes a reference to a Navy psychiatrist who testified and submitted a report, which included the results of an electroencephalogram. This evidence pointed to a mild abnormality of the brain waves common to about 10 percent of the population, which rendered the individual less tolerant of alcohol. Dr. Riggs diagnosed alcoholism, violent syndrome and major depression with paranoid ideation. A history of head injuries while boxing in the Marines was noted. The diagnoses following the September 1992 VA psychiatric examination were alcohol abuse and intermittent explosive disorder, by history, both in remission, depressed mood by past history and paranoid personality traits by history. A September 1992 VA neurology examination was described as being normal with no history suggestive of any neurologic disease. The VA outpatient treatment report which is not a duplicate of ones of record at the time of the prior decision deals with edema due to medication. At the hearing, the veteran testified that he had boxed prior to service and that, when he went into the service, he was selected to box. Transcript of August 1992 personal hearing Tr. at 3-4. He reported that he became increasingly irritable during service and described the circumstances of the fight that led to the special court-martial. Tr. at 5. He said that he went to work for a company after service and remained there for more than four years but was not given duties and responsibilities commensurate with his abilities. He said that he then started a business which was seriously damaged by urban renewal. Tr. at 6. When questioned about post-service treatment, he reported that he started getting involved in fights and finally, at his wife's request, sought treatment from the VA. Tr. at 6-7. He reported that brain wave studies made by the VA had shown brain damage due to his boxing while in service. Tr. at 7. None of the evidence, either old or new, establishes that the veteran has an organic brain syndrome as the result of injuries received during service. Essentially, the veteran testified that an electroencephalogram made when he was first hospitalized in 1969 was interpreted as being abnormal which was thought to have resulted from his boxing during service. That assertion is correct but is essentially a repetition of the report of the November and December 1969 hospitalization which was of record and considered at the time the prior decision was made. In this regard, it should also be noted that an electroencephalogram made during service, as noted in the report of the special court- martial, had found a mild abnormality which a psychiatrist testified was present in about 10 percent of the population. While reports of electroencephalographs in service and after service reveal an abnormality, this is a symptom and not diagnostic of organic brain disease or disability. Neither the medical records at the time of the prior decision nor the subsequent VA examination and examination by Dr. Riggs have shown any type of organic brain disorder attributable to trauma during service. No examiner has reported that the veteran has a disabling organic brain disorder related to trauma received during service, nor has any examiner related the veteran's post-service paranoid ideation or alcohol abuse to brain disease or trauma incurred during service. Although the veteran has attempted to relate his symptomatology to trauma received during service, he lacks the training to make such a medical judgment and is not competent to testify as to that point. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In order for the veteran to be granted service connection, there must be evidence both of a service-connected disease or injury and a present disability attributable to such disease or injury. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The basic requirement for new and material evidence is that it offers a reasonable probability of affecting the outcome of the prior decision when considered with all of the evidence, both old and new. Viewed on that basis, the testimony and medical reports cannot be considered to be "new and material evidence." Robinette v. Brown, No. 93-985, Slip. op. at 11, (U.S. Vet. App. Sept. 12, 1994). "New and material evidence" would consist of medical evidence that he has organic brain syndrome and relating it to disease or injury in service. Inasmuch as none of the evidence received since the last decision, when considered with the evidence of record at the time of the prior decision, establishes that the veteran has a disabling brain disorder as a result of trauma or disease present during service, the evidence submitted by him is not new and material. ORDER The veteran's application to reopen his claim for service connection for a brain disorder is denied. THOMAS J. DANNAHER 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.