BVA9504888 DOCKET NO. 93-11 045 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from January 1978 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of October 1991 by the Department of Veterans Affairs (VA) Boston, Massachusetts, Regional Office (RO). During his December 1992 personal hearing, the veteran apparently raised the issue of entitlement to a permanent and total disability evaluation for pension purposes. This issue has not been developed or certified for appellate consideration and is therefore referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that new and material evidence sufficient to reopen his claim of entitlement to service connection for a psychiatric disorder has been submitted. He maintains that this new evidence demonstrates that his current psychiatric disorder is related to the stabbing incident that he experienced during active service. Therefore, he requests a favorable determination by the Board. 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 been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder. That evidence, however, does not provide a new factual basis for allowance of this claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In a February 1988 rating decision, the RO determined that the veteran was not entitled to service connection for a psychiatric disorder. The veteran did not appeal that determination. 3. The additional evidence associated with the claims file subsequent to the February 1988 rating decision is not cumulative and provides information that was not already of record which is relevant and probative of the issue at hand. 4. A psychiatric disorder was not clinically manifested during active service or within one year following the veteran's separation from service. CONCLUSIONS OF LAW 1. The February 1988 rating decision that determined that the veteran was not entitled to 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), 20.1103 (1994). 2. The evidence received since the RO denied entitlement to service connection for a psychiatric disorder is new and material and the veteran's claim for that benefit is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 3. A psychiatric disorder was not incurred in or aggravated by active service nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1131, 1133, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a psychiatric disorder was denied by a February 1988 rating decision. The relevant evidence of record at that time consisted of the service medical records and treatment records from the Boston, Massachusetts, VA Outpatient Clinic dated from September to October 1987. The service medical records are devoid of any complaints, treatments, or diagnoses referable to a psychiatric disorder. The treatment records from the Boston, Massachusetts, VA Outpatient Clinic indicate that the veteran reported irritability, an inability to get along with others, suicidal thoughts, thoughts about hurting others, and paranoia in September 1987. The veteran further revealed that he had been prescribed medications by the psychiatrist from whom he was receiving counseling. The examiner felt that the veteran showed evidence of paranoid psychosis, but that this condition was still under control. If a notice of disagreement is not filed within the prescribed period, an RO decision on a claim becomes final, the claim may not thereafter be reopened and allowed, except on the basis of new and material evidence. See 38 U.S.C.A. §§ 5105, 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If it is determined that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). 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 be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The relevant evidence that has been added to the record since the February 1988 rating decision includes medical records from Massachusetts General Hospital dated from June 1979 to 1984, November 1992 letters from the Freedom Trail Clinic, and the transcript of the veteran's December 1992 personal hearing. The records from Massachusetts General Hospital indicate that in June 1979, the veteran was angry, suspicious, and not thinking clearly. In addition, he was overheard arguing with his mother on the telephone. In 1984, the veteran was noted to be upset and he stated that everyone was after him. The examiner indicated that the veteran was agitated and possibly paranoid. The November 1992 letters from the Freedom Trail Clinic indicate that the veteran had been diagnosed with chronic paranoid schizophrenia and that he had this disorder for a number of years. These letters also show that the veteran was receiving medication and counseling for his psychiatric disorder. During his December 1992 personal hearing, the veteran testified that he was attacked by two men and stabbed while he was home on leave and that after this attack, he began to experience nervousness. In addition, the veteran testified that his nervousness prevented him from maintaining employment and that he was taking medication for his psychiatric disorder. The documents that have been associated with the claims file following the February 1988 rating decision constitute new evidence because they are not cumulative or redundant of the evidence that the RO considered at that time. In addition, the records from Massachusetts General Hospital as well as the transcript of the veteran's December 1992 personal hearing constitute material evidence as they address the possibility of the incurrence of a psychiatric disorder during service. Since new and material evidence has been presented, the veteran's case is reopened and the merits of the veteran's claim in light of all the evidence, both new and old, will be evaluated. See Manio, 1 Vet.App. at 145. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, where a psychosis becomes manifest to a degree of ten percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309. The evidence of record does not establish that service connection for a psychiatric disorder is warranted. In this regard, the Board notes that although the veteran sought treatment at Massachusetts General Hospital in June 1979, no diagnosis of a psychiatric disorder was rendered at that time. In fact, the service medical records do not indicate that the veteran sought any psychiatric treatment from June 1979 until his separation from service in May 1980. In addition, the veteran did not seek psychiatric treatment for a number of years following his separation from service. Lastly, although the November 1992 letters from the Freedom Trail Clinic indicate that the veteran had chronic paranoid schizophrenia for many years, these letters do not relate the veteran's disorder to his active service or to the year following his separation from service. While the veteran testified that his current psychiatric disorder is related to the stabbing incident he experienced during service, he, as a layman, is not competent to address issues requiring expert opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 494- 95 (1992). Given all of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a psychiatric disorder. As such, there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim which would give rise to a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). Accordingly, the appeal must be denied. ORDER Service connection for a psychiatric disorder is denied. WARREN W. RICE, JR. 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.