Citation Nr: 0000048 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 96-24 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active duty from December 1968 to January 1971. This appeal arises from a recent rating decision from the Hartford, Connecticut Regional Office (RO) that denied service connection for paranoid schizophrenia. On September 16, 1997, a hearing was held at the RO before Iris S. Sherman, who is a member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). This case was remanded in November 1998 for further development. The case was thereafter returned to the Board. The veteran's claim for service connection for a neuropsychiatric disability was denied by rating decision in September 1975 with notice to the veteran in October 1975. The last final denial of the claim was in November 1984 at which time the RO determined that evidence sufficient to reopen the veteran's claim for service connection for a neuropsychiatric disability had not been submitted. In January 1985, the veteran was notified of this decision and of his appellate rights. There has been no appeal of this rating action. The current appeal arises from a June 1995 rating action which held that service connection was not warranted for schizophrenia. As the Board is required to make an independent determination of whether the evidence is new and material, the issue to be considered will be that appearing on the title page of this decision. In the May and August 1999 Supplemental Statements of the Case, the issue was considered on a new and material basis. In Evans v. Brown, 9 Vet. App. 273 (1996), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") indicated that in determining whether new and material evidence has been submitted, it is necessary to consider the evidence added to the record since the last time a claim was denied on any basis. The issue of entitlement to service connection for a neuropsychiatric disability has been denied on more than one occasion. Therefore, the Board will address the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for paranoid schizophrenia since the RO's decision in November 1984. FINDINGS OF FACT 1. By a rating action dated in November 1984, the RO denied service connection for a paranoid schizophrenia. 2. The veteran did not timely appeal that determination following notification, and it became final. 3. The additional evidence submitted in connection with the claim to reopen is not so significant that it must be considered to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The November 1984 decision of the regional office that denied service connection for paranoid schizophrenia is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302 (1999). 2. Evidence received since the November 1984 RO decision is not new and material, and, thus, the claim for service connection for paranoid schizophrenia is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a service enlistment examination in September 1968, the veteran's psyche was clinically evaluated as normal. On a separation examination in December 1970, a history of depression and of nervous trouble was reported. It was noted that the veteran attempted suicide one time. On examination, the veteran's psyche was clinically evaluated as normal. Associated with the file in June 1975 was a 1975 report from Santiago Lloriens (spelling not totally legible), M.D., that notes that the veteran was under treatment for a psychotic disorder since January 1974. In June 1975, the veteran filed a claim for service connection for a neuropsychiatric disability. On a VA examination in August 1975, it was noted that there were no medical records available. The veteran reported that in service, he was hospitalized at an army hospital in Okinawa for six weeks due to a "nervous" condition, for which he was treated for four to six months afterwards. After service, the veteran had been treated since January 1974. The diagnoses included anxiety neurosis, moderate to moderately severe. By rating action of September 1975, service connection for a anxiety neurosis was denied. The veteran was notified of this decision in October 1975. Associated with the file in April 1984 was a statement from Ariel Rojas Davis, M.D., who reported that the veteran was under psychiatric treatment since 1974. The diagnoses included chronic paranoid schizophrenia. By rating action of August 1984, it was determined that new and material evidence had not been submitted to reopen the veteran claim for service connection for a nervous disability. Notice was sent to the veteran's address of record in August 1984, however, it was returned as undeliverable. Associated with the file in October 1984 was a medical certificate from September 1984 that indicates that the veteran was diagnosed with paranoid schizophrenia. Associated with the file in October 1984 was an October 1984 record from Dr. Davis who indicated that the veteran had been seen since 1974. The diagnoses included chronic paranoid schizophrenia. By rating action of November 1984, it was determined that evidence sufficient to reopen the claim for service connection for a nervous disability had not been submitted. The veteran was notified of this decision in January 1985. Associated with the file in February 1985 was a November 1984 VA outpatient record that notes that the veteran was seen with a history of being treated for paranoid schizophrenia. The impression was deferred to complete evaluation. Further evaluation was suggested. By rating action of February 1985, it was determined that evidence sufficient to reopen a claim for service connection for a neuropsychiatric disability had not been submitted. There is no indication that the veteran received notice of this decision; thus, this decision did not become final. Associated with the file in May 1995 were March 1995 VA outpatient records that note that the veteran was seen for a psychiatry evaluation. He had prior psychiatric history and treatment in the 1970s and 1980s. It was noted that the veteran's past psychiatric history included an overdose in 1968. He had been diagnosed with chronic paranoid schizophrenia in 1984 and had treatment by Dr. Davis since 1974. On a VA examination for post traumatic stress disorder (PTSD) in May 1995, it was noted that the veteran's medical records were not available for review. The veteran reported that in service he became depressed and tried to kill himself with an overdose of pills. He had treatment after service beginning in 1974. The diagnoses included schizophrenia, paranoid type; PTSD, chronic; alcohol abuse, in remission; and cocaine abuse, in remission. In June 1995, service personnel records were received. These contain no mention of a psychiatric disability. Associated with the file in September 1995 were VA treatment records from September 1981 to October 1984 that are copies of records associated previously with the file; an Agent Orange registry form, a request for treatment for myositis sacrolumbar, paraspinal, history of herniated nucleus pulposus to which the veteran did not appear, a request for treatment for headaches, which was canceled, and social work notes regarding visits from the veteran's spouse. It was noted that the veteran had a nervous disability. At an RO hearing in May 1996, the veteran testified that he attended college after service; however, he had nightmares and other problems and flunked out. At that time, he saw a psychiatrist. He currently was being treated by a psychiatrist. At the Board hearing in September 1997, the veteran testified that he was not able to handle college after the service. He had been a good student in high school prior to service. He was treated by Dr. Rojas after service and then by the VA. He was currently in therapy and was on medication. The veteran stated that in service he tried to commit suicide with pills. He was taken to a facility in Alabama. In November 1998, the current issue was Remanded by the Board. The RO was requested to furnish information in order to attempt to obtain additional service medical records. In December 1998, a letter was sent to the veteran requesting information regarding his in-service psychiatric treatment, including specific dates, places and circumstances of each hospitalization and the units to which he was assigned during the relevant periods. No response was received from the veteran. II. Analysis A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.1103 (1999). Section 5108 of title 38 of the United States Code provides that, "[i]f 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." The regulations provide that 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 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) (1999). Current caselaw provides for a three-step analysis when a claimant seeks to reopen a final decision based on new and material evidence. First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, it must be determined immediately upon reopening 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); and third, if the claim is well grounded, the merits of the claim must be evaluated after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Winters v. West, 12 Vet App 203 (1999) (en banc). The Board notes that, until recently, caselaw of the Court mandated that an additional question had to be addressed; that is, whether in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This additional test was overruled in the Hodge case cited above and will not be used in this case. Additionally, in this case, the RO did not cite or rely on the overruled portion of the Colvin test in the May 1999 or August 1999 SSOCs. The additional evidence submitted since the November 1984 RO decision includes VA treatment records that are cumulative of evidence already of record and show continued treatment for schizophrenia. Additionally, there are service personnel records not relevant to the issue on appeal. The service personnel records and VA treatment records are not material, as they do not relate any current schizophrenia to military service. They also do not establish the presence of schizophrenia to a compensable degree within one year postservice. Additionally, there is testimony by the veteran to the effect that paranoid schizophrenia is related to his service. This testimony is not material because the veteran is not competent to make such a determination. Where, as here, the determinative issue is one of medical causation, competent medical evidence connecting the current disability to an in-service injury is required, and lay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, new and material evidence has not been submitted to reopen a claim of entitlement to service connection for paranoid schizophrenia. This case was remanded in November 1998 for the RO to obtain information from the veteran in order to make an additional search for records of reported treatment at specific facilities. No response was received. Absent cooperation by the veteran, the Board finds that there is insufficient detailed information on which to request additional service medical records. ORDER As new and material evidence has not been presented to reopen a claim of service connection for paranoid schizophrenia, the claim is denied. Iris S. Sherman Member, Board of Veterans' Appeals