Citation Nr: 0006999 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-13 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from February 1967 to October 1968 and from November 1973 to June 1975. This issue was last before the Nashville, Tennessee, Department of Veterans Affairs (VA), Regional Office (RO), in June 1995, at which time it was determined that the veteran had not presented sufficient new and material evidence to reopen his claim for service connection for an acquired psychiatric disorder. This appeal arose from an April 1998 rating decision of the Nashville, Tennessee RO, which found that the veteran had not submitted new and material evidence to reopen his claim for service connection. FINDINGS OF FACT 1. The RO refused to reopen the veteran's claim for service connection for an acquired psychiatric disorder in June 1995. 2. Additional evidence submitted since that time fails to show that the veteran's current psychiatric disorder, diagnosed as paranoid schizophrenia, either began in service or manifested to a compensable degree within one year of his separation. CONCLUSION OF LAW Evidence received since the RO refused to reopen the claim of entitlement to service connection for an acquired psychiatric disorder in June 1995 is not new and material, so that the claim is not reopened, and the June 1995 decision of the RO is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a), 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 3.303(c), 3.307, 3.309, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The applicable criteria state that a notice of disagreement shall be filed within one year from the date of mailing of the 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 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 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1999). 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 (West 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 conjunction 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) (1999). The evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The most recent denial of the veteran's claim is the June 1995 rating action which refused to reopen his claim for service connection. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from the date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Personality disorders as such are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.303(c) (1999). The evidence which was of record when the RO considered this case in June 1995 will be briefly summarized. A review of the veteran's service medical records included a psychiatric evaluation that was performed as part of his processing for an administrative discharge on the grounds of unsuitability conducted on October 18, 1974. At the time of this evaluation, he had served for five years and five months; he was in the recreational services division. He indicated that he had been experiencing considerable conflict with his commanding officer, the first sergeant and the noncommissioned officers; the nature of this conflict was unclear to the examiner. He stated that he was "tired of all the bull crap" although the exact nature of his complaints was not explained. He had not had trouble like this at any other duty station and he denied any symptoms that would suggest neurotic or psychotic mental processes, such as insomnia, anxiety, depression, hallucinations or delusions. The mental status examination revealed that he was somewhat aggressive with the interviewer. He impressed the examiner as a bright young man who had a lot on the ball and knew what he was talking about. His speech was rapid but coherent and he seemed alert. His mood was of mild to moderate anxiety and moderate anger; his affect was appropriate to his mood. The impression was that his symptoms were most suggestive of a passive-aggressive personality disorder, although it was puzzling that he had never had any problems before this. The examiner agreed that either a transfer or separation from service was in order. A mental status examination from March 1975 noted no significant mental illness. He was able to distinguish right from wrong and could adhere to the right. A private hospitalization from May to August 1978 noted that the veteran had been brought to the hospital by the police from jail (he had been incarcerated for disorderly conduct). During the interview, he was evasive and circumstantial. He provided irrelevant responses and was confused and disoriented as to time and place. He displayed no insight and had impaired judgment. His affect was described as flat. He appeared to be suspicious, but he denied delusions. He was placed on Thorazine and he gradually improved. The diagnosis was paranoid schizophrenia. In October 1978, the RO first reviewed this case. A rating action was issued which denied entitlement to service connection for paranoid schizophrenia, noting that it had not been present in service or to a compensable degree within one year of discharge. The personality disorder diagnosed in service was a development abnormality which was not subject to service connection. The veteran then submitted an April 1976 hospital report. He had been brought to the hospital by the police due to his bizarre behavior; the officer thought he might be hallucinating. In the emergency room, he was incoherent and displayed odd behavior. However, when he was seen later, he was not delusional or psychotic. The examiner noted that he had apparently been apprehended while committing a possible burglary, and may have simulated a mental illness to avoid the consequences. In any event, his supposed mental illness cleared rapidly after his arrival at the hospital. The diagnosis was no mental disorder. The veteran was hospitalized at a private facility between September and October 1976. He fluctuated from being very withdrawn to complaining of being over-medicated to stating that he felt that the staff was trying to push him out of the hospital. He denied hallucinations. He claimed that he had had a religious experience and that the people in the hospital had taken it away from him. He had been brought into the hospital by police who had apprehended him for disorderly behavior. He was largely unwilling to cooperate with the examination. His mental status on admission noted that he was superficially friendly with a grandiose and somewhat ecstatic expression on his face. He sang hymns during the interview and would break into song whenever he was asked a question that he did not want to answer or which disturbed him. He described a very complex but somewhat disorganized delusional system with a religious base. He believed that he was a "chosen" person. He would pause during the interview and get an ecstatic expression on his face, which would suggest that he was experiencing an auditory hallucination. The diagnosis was acute schizophrenic episode. A rating action was issued in September 1979, which again denied service connection for a psychiatric disorder. Private hospital records from March to April 1993 noted his treatment for bipolar disorder, manic, with psychotic features. In April 1994, the RO informed the veteran that in order to reopen his claim, he was required to submit new and material evidence. In response, he submitted private treatment records which spanned the period from August 1978 to September 1994. These reflected his continuing treatment for a psychiatric disorder; however, they did not establish that his condition had been present in service or that any psychosis had manifested to a compensable degree within one year of separation. As a consequence, the RO again refused to reopen his claim by a rating action issued in November 1994. He then submitted duplicates of his April 1976 and September to October 1976 hospital reports. The evidence submitted since the June 1995 denial included duplicates of the veteran's service medical records, as well as personnel records pertaining to his conflicts with his superiors in 1974 and 1975. These records noted that, despite a good record in the past, he had developed an argumentative and uncooperative attitude. He refused lawful orders and became irresponsible and apparently emotionally unstable. His commanding officer suggested that he might have a psychological problem that needed further investigation (an evaluation was conducted in October 1974 and was previously considered by the RO). After a careful review of the evidence of record, it is found that the additional evidence which the veteran has submitted is not "new and material." Accordingly, his claim is not reopened and the June 1995 decision by the RO remains final. "New" evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the instant case, the additional evidence is merely cumulative. The evidence previously of record indicated that the veteran had been diagnosed with a personality disorder in service, which is not subject to service connection. See 38 C.F.R. § 3.303(c) (1999). He was diagnosed with paranoid schizophrenia during a September to October 1976 private hospitalization, which was more than one year following his discharge from service. There was no evidence proffered prior to June 1995 of a connection between the diagnosed schizophrenia and the personality disorder noted in service. The evidence submitted since the June 1995 denial included personnel records which did provide some more detailed information concerning the basis of the October 1974 psychological evaluation, which had been previously considered by the RO. However, none of the evidence since the 1995 denial indicated that anything other than a personality disorder had been diagnosed in service; nor did it establish any etiological relationship between any currently diagnosed psychiatric disorder and his period of service. While the veteran has expressed his opinion that such a causal relationship exists, he is not competent, as a layperson, to render an opinion as to medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because the veteran has not submitted new evidence, he has not fulfilled the requirement of presenting "new and material" evidence to reopen his claim for service connection for an acquired psychiatric disorder. Since it has been determined that no new evidence has been submitted, no further analysis is needed, for the evidence could not be "new and material" if it is not new. Smith v. West, 12 Vet. App. 312 (1999). ORDER New and material evidence not having been submitted to reopen the claim for service connection for an acquired psychiatric disorder, the benefit sought on appeal is denied. C. P. RUSSELL Member, Board of Veterans' Appeals