BVA9501570 DOCKET NO. 93-09 891 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to August 1969. He is represented in this appeal by Disabled American Veterans. This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Philadelphia, Pennsylvania, Regional Office (RO), that denied service connection for a psychiatric disorder on the basis that new and material evidence had not been submitted to reopen the veteran's claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error by not finding that new and material evidence had been submitted to reopen the veteran's claim for service connection for a psychiatric disorder. The veteran asserts that prior to service he was quiet, shy and a loner. He maintains that upon entering service he was scared since he was not used to being around people, including male authority figures. He related one instance during boot camp of having panicked in front of a superior officer and running away. He states that, subsequently, he was harassed in service, and cited instances of being laughed at, punched and having his life threatened. He asserts that the situation deteriorated to the point that he contemplated suicide in order to get out of the service. Once discharged from the service, the veteran maintains that he still feared for his life since those who harassed him in service threatened to get him. He stated that he stayed in or around his house for the first year after discharge. The veteran contends that he had a psychiatric disability in service and that the evidence of record is sufficient to reopen his claim and grant service connection for a psychiatric disorder. A request is made that the Board consider all pertinent regulatory criteria in its appellate review. 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 has not been submitted to reopen the veteran's claim for service connection for a psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran was denied service connection for a psychiatric disorder in a rating decision dated in April 1980; he did not timely appeal that decision following notification. 3. Evidence submitted since the April 1980 rating action reveals that the veteran has a psychiatric disability, but does not relate such disability to service; this evidence is cumulative to that previously considered and does not raise a reasonable possibility of altering the outcome when considered in light of all the evidence of record. CONCLUSION OF LAW 1. The April 1980 rating decision denying service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a), 20.302(a) (1993). 2. There is no new and material evidence to reopen the veteran's claim for service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Evidence considered at the time of the 1980 rating decision denying service connection for psychiatric disability included service medical records and a VA examination report. The veteran's enlistment examination report, dated in January 1969, reveals no complaints, treatment or findings of a psychiatric disability. A July 1969 treatment record indicates that witnesses saw the veteran standing on the bow of the ship in what they believed was a suicide attempt; the veteran was subsequently admitted for hospitalization with a diagnosis of depressive reaction. While hospitalized, it was elicited that the veteran was unhappy in the service and attempted suicide since he was depressed that he could not perform the menial tasks that were asked of him. He expressed disappointment that he had passed his induction physical examination, and that his congenital shoulder problem did not keep him out of the service. The examiner opined that the veteran did not and never did suffer from psychotic or psychoneurotic depression, but rather from a reactive depression created by his poor duty performance and his disappointment at not being able to get out of the service due to his shoulder. The examiner further opined that the veteran appeared to have a character disorder, that of inadequate personality and certain features of passive dependent personality, and would never be able to adequately adjust to naval service. It was recommended that the veteran be considered for an administrative separation. The discharge diagnosis was inadequate personality. The veteran's discharge examination report, dated in August 1969, is silent as to complaints, treatment or findings of a psychiatric disorder. On VA examination in January 1980, the veteran reported a history of being harassed in service, having attempted suicide in service, and having used drugs for a nine year period after service. He described a suicide attempt in service and reported experiencing hallucinations during his hospitalization in service. Mental status examination revealed the veteran to be oriented in all three spheres, with a somewhat flattened, but otherwise appropriate, affect. No significant amount of anxiety or depression was evident, and any psychotic thinking was denied. His intelligence was within the average range, with some concrete thinking evident. His judgment was fair, his memory was intact, and his insight was lacking. The diagnosis was schizophrenia, paranoid type, in remission. In a rating decision dated in March 1980, the veteran was denied service connection for psychiatric disability on the basis that inadequate personality disorder, diagnosed in service, is not a disability under the law, and that there was no diagnosis of schizophrenia in service, nor any evidence of such disability within one year following separation from service. In a rating decision dated in April 1980, the veteran was denied service connection for schizophrenia, paranoid type, competent, on the basis that such disability first manifested itself more than ten years after separation from service, and that the evidence did not show such disability had its inception in service or was aggravated by service, nor that such disability was the maturation of the personality disorder diagnosed in service. He was notified of these decisions in a letter dated in April 1980. A notice of disagreement shall be filed within one year from the date of mailing of notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision on the same factual basis. The date of the letter of notification will be considered the date of mailing for purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302(a). The veteran did not submit a notice of disagreement with the April 1980 rating decision and it is final. Id. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. "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 C.F.R. § 3.156(a). In order to justify reopening a claim for service connection on the basis of new and material evidence, there must be a reasonable possibility that the new evidence presented, when viewed in the context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In October 1991, the veteran requested that his claim for service connection for a psychiatric disorder be reopened. Evidence presented by the veteran in support of his claim since the April 1980 final rating decision consists of a report of contact with the veteran's doctor, dated in November 1987, a hospitalization report for a period of hospitalization from April to June 1990, a statement from an acquaintance, dated in February 1992, and a copy of the transcript of the veteran's testimony from his hearing at the RO in September 1992. A November 1987 report of contact with Dr. Lebow, the veteran's physician, reveals that the doctor stated he has been treating the veteran since his birth in 1951 and is still seeing him. He indicated that he is not treating the veteran for any psychological problems, although he is aware that the veteran does have "mental problems." He stated that he has only treated the veteran for acute illnesses and that the veteran has no physical impairments. A hospitalization report for a period of hospitalization from April to June 1990, indicates that the veteran was admitted voluntarily for complaints of depression. The veteran reported a prior history of depression in 1969, followed by a prolonged recovery period, which included psychotic symptomatology. The provisional diagnoses included bipolar disorder, depressed, panic disorder; avoidant personality; and psychosocial stressors. He was treated with psychotherapy, activities therapy, and psychotropic medication. During his stay in the hospital, the veteran became less depressed and better organized in his thinking and behavior. The discharge diagnoses included schizoaffective schizophrenia, depressed type; avoidant personality; and psychosocial stressors. A February 1992 statement from an acquaintance, indicates that she was a good friend of the veteran's sister and has known the veteran since he was eleven years old. She stated that the veteran was a quiet boy, who was quite withdrawn and sullen, and who had a bad temper when he did not get what he wanted. She recalled the veteran having a few childhood friends. She expressed that she was surprised when the veteran enlisted in the service since he did not seem like the military type. She remembered one instance when the veteran came home on leave and was jumpy, irritable, moody and quite nervous. She said the veteran "was like a crazy person." After he was discharged from service, she opined that the veteran was a different person; she said he was not normal and was really out of it. Recently, she stated, she has observed the veteran in screaming fits and has been told by his sister that these fits occur quite frequently. She concluded by saying the veteran's behavior is much different now than it was before he entered service. The transcript of the veteran's testimony from his September 1992 hearing at the RO indicates that the veteran testified that, upon entering service, he was scared since he was not used to being around people, including male authority figures. He recalled one instance during boot camp of having panicked in front of a superior officer and running away. He stated that, subsequently, he was harassed in service, and cited instances of being laughed at, punched and having his life threatened; and that he contemplated suicide in order to get out of the service. Once discharged from the service, the veteran testified that he still feared for his life since those who harassed him in service threatened to get him. He stated that he stayed in or around his house for the first years after discharge. The November 1987 report of contact with the veteran's doctor, the hospitalization report for a period of hospitalization from April to June 1990, the February 1992 statement from an acquaintance, and the copy of the transcript of the veteran's testimony from his hearing at the RO in September 1992, are all new evidence to the extent that they were not on file at the time of the original denial of service connection for a psychiatric disorder in April 1980. The November 1987 report of contact with the veteran's doctor, however, indicates that the doctor has treated the veteran for non-psychiatric problems and that he is only aware that the veteran has "mental" problems. No findings pertaining to a psychiatric disorder were reported and no relationship between any current symptomatology and the veteran's service years was established. The fact that the veteran has a psychiatric disability was established in January 1980. The report of contact, therefore, is cumulative to the extent that it reiterates that the veteran has a psychiatric disability. It does not raise a reasonable possibility that a psychiatric disorder was incurred in service or is related to service. The hospitalization report for a period of hospitalization from April to June 1990, indicates that the veteran currently has a psychiatric disability, but establishes no relationship between any current symptomatology and the veteran's service years. The hospitalization report is also cumulative to the extent it confirms that the veteran has a psychiatric disability. It does not, however, raise a reasonable possibility that a psychiatric disorder was incurred in service or is related to service, either. It is noted in this report that the veteran indicated that he had psychotic symptomatology following his hospitalization in service in 1969; this, however, is not corroborated by the veteran's service medical records. In fact, this history is similar to that provided during the January 1980 VA examination, which was not found to be persuasive at the time of the 1980 rating actions. The February 1992 statement from an acquaintance indicates that she knew the veteran prior to his service years and that he was "like a crazy person" and "not normal" upon returning from service. This acquaintance is not a medical professional and is not competent to offer a medical diagnosis regarding the veteran's psychiatric status. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In addition, such statement establishes no clinical relationship between any current symptomatology and the veteran's service years. It, too, does not raise a reasonable possibility that a psychiatric disorder was incurred in service or is related to service. Lastly, the transcript of the veteran's testimony from his September 1992 hearing indicates that the veteran was scared in service, was harassed by others, attempted suicide, and was subsequently hospitalized. These facts were already noted at the time of the original denial of service connection in April 1980. To this extent, the veteran's testimony is cumulative, and does not raise a reasonable possibility that a psychiatric disorder was incurred in service or is related to service. Accordingly, the November 1987 report of contact with the veteran's doctor, the hospitalization report for a period of hospitalization from April to June 1990, the February 1992 statement from a friend of the veteran's, and a copy of a transcript of the veteran's testimony from his hearing at the RO in September 1992, are not new and material evidence to reopen the veteran's claim for service connection for a psychiatric disorder. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a); Colvin v. Derwinski, 1 Vet.App. 171 (1991). ORDER The veteran's application to reopen his claim for service connection for a psychiatric 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.