BVA9500809 DOCKET NO. 93-07 560 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a psychiatric disorder, to include a schizoaffective disorder. 2. Whether new and material evidence has been submitted to reopen a claim for basic eligibility for Department of Veterans Affairs (VA) pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from July 1955 to October 1955. By decision in April 1985, the Board of Veterans' Appeals (Board) denied service connection for a psychiatric disability and basic eligibility to a permanent and total disability rating for pension purposes. This appeal arises from a September 1992 determination by the Seattle, Washington, VA Regional Office (RO) that the veteran had not submitted new and material evidence sufficient to establish service connection for a psychiatric disability and basic eligibility to a permanent and total disability rating for pension purposes. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran is entitled to the presumption of soundness upon entrance into active service. It is asserted that, in regard to service connection for his psychiatric disorder, no evidence has been produced to rebut the presumption. It is further contended that the veteran cannot work because of his psychiatric disability and, therefore, deserves pension benefits. 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 to reopen a claim for service connection for a psychiatric disability has not been submitted. It is also the decision of the Board that new and material evidence to reopen a claim for basic eligibility for a total disability rating for pension purposes has not been submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for a psychiatric disability was denied in an April 1985 Board decision. 3. Basic eligibility to a total disability rating for pension purposes was denied in an April 1985 Board decision. 4. Evidence received since the April 1985 Board decision is cumulative or redundant or does not bear directly on whether a psychiatric disability had its onset or was aggravated in service. 5. Evidence received since the April 1985 Board decision does not bear directly on whether the veteran has basic eligibility for pension benefits. CONCLUSIONS OF LAW 1. The April 1995 Board decision denying basic eligibility for pension benefits is final; new and material evidence has not been presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105. (1993). 2. The April 1995 Board decision denying service connection for a psychiatric disability is final; new and material evidence has not been presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105. (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, he has presented a claim which is plausible, and all relevant facts have been properly developed. In the presentation by the veteran's accredited representative, reference is made to the failure of the Board to obtain January 1971 records from the Monticello Hospital in Longview, Washington. The Board notes that the original request for records from the Monticello Hospital was made in March 1984, as part of a claim for service connection for yellow jaundice in conjunction with his claim that he had no disabilities prior to his entry into active service. The hospital's reply was that there were no records for the period requested (1953-1955) and that the only record present was an outpatient treatment form dated in January 1971. The Board notes that the January 1971 record would not have been relevant for the claim then pending. Moreover, it has not been argued that there is any relevancy of such treatment record to the current claim. Accordingly, no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. I. Basic Eligibility for Pension Benefits. The evidence before the Board at the time of the April 1985 decision denying basic eligibility for A total disability rating for pension purposes included the veteran's DD Form 214 which indicates that he entered active service on July 1, 1955 and was separated from active service on October 12, 1955. As the issue of basic eligibility for pension benefits was denied by Board decision in April 1985, the appellant's claim may be reopened only if new and material evidence is presented. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). "New and material" evidence does not have to "establish" service connection; it must merely create a "reasonable possibility" of service connection for purposes of reopening the claim. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that 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. Cox v. Brown, 5 Vet.App. 95 (1993). Since the Board decision in April 1985, the veteran has submitted statements by two individuals who have known him. However, these statements address his mental status and not his basic eligibility for pension benefits. The veteran has also submitted a letter which outlines his mental and physical complaints, a November 1986 Social Security Administration decision which found him to be disabled, and Statements in Support of Claim, which indicate that the veteran feels he deserves either pension benefits or service connection for his psychiatric disability. The criteria for eligibility for non-service connected disability pension benefits are listed in 38 U.S.C.A. § 1521. To qualify for pension benefits the veteran must have served for ninety days or more during a period of war; during a period of war and was discharged or released from such service for a service-connected disability; for a period of ninety consecutive days or more and such period began or ended during a period of war; or for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 1991); 38 C.F.R. § 3.3 (1993). Periods of war are defined in 38 U.S.C.A. § 101(6, 7, 8, 9, 29 and 33) and 38 C.F.R. § 3.3. The veteran's active service was from July to October 1955. The veteran's service was not during a period of war as defined in 38 U.S.C.A. § 101 or 38 C.F.R. § 3.3. The governing statute and regulation contain no exceptions and the Board has no power to create exceptions thereto. The veteran has submitted no evidence which bears on the issue of whether he served during a time of war. Therefore, pension benefits may not be awarded to him because his service was exclusively during peacetime. The evidence submitted by the veteran is new, in that it was not previously of record. However, none of the evidence submitted since the April 1985 Board decision bears directly on the question at issue, i.e., whether the veteran's service was during a time of war. For the reasons and bases discussed above, the Board finds that new and material evidence has not been submitted sufficient to reopen the appellant's claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). Therefore, the April 1985 Board decision denying basic eligibility for a total disability rating for pension purposes is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1105 (1993). II. Service Connection for a Psychiatric Disability The evidence of record at the time of the April 1985 Board decision included a DD Form 214 which reflected that the veteran entered active service on July 1, 1955. The form indicates that he was separated for physical disability which existed prior to active service and that he was, therefore, not entitled to receive disability severance pay. The veteran's service medical records are not available. The record also included a VA Application for Compensation or Pension, dated in October 1982, in which the veteran stated that he was treated for a schizophrenic reaction on July 3, 1955. The record also included a form from the San Francisco General Hospital, which indicates that no treatment records pertaining to the veteran had been found but requests additional information regarding the veteran and dates of alleged treatment. Also included was a note from the Monticello Hospital, Longview, Washington, which states that the only record found was an outpatient record dated in January 1971. Evidence received since the Board decision includes a letter from the veteran received in October 1989, in which he states that he was prescribed Serpasil by the service physician who treated him for a psychiatric disorder. The remainder of the letter outlines various physical complaints for which the veteran was treated after his separation from active service. Also added to the record was a statement, dated in February 1992, by Mr. [redacted]. Mr. [redacted] stated that the veteran was a student in a summer school class which Mr. [redacted] taught in 1948 or 1949. The statement indicates that the veteran appeared intelligent, alert and mature for his age. The statement notes that when Mr. [redacted] saw the veteran several years later he seemed very troubled and was not able to provide for himself. Also added was a statement dated in February 1992 by Mr. [redacted], in which Mr. [redacted] states that he met the veteran in 1956. The statement outlines physical symptoms which the veteran displayed at that time. The statement indicates that years later the veteran still appeared to be in poor health and that in February 1992 he seemed very nervous. Also added to the record is a copy of a November 1986 decision by a Social Security Administration Administrative Law Judge which awarded the veteran Social Security benefits, effective December 1984. The decision refers to a psychiatric examination performed in October 1986 at the behest of the Social Security Administration. The decision notes that the examining psychiatrist opined that the veteran had led a marginal existence with a history of schizophrenia throughout his lifetime. Also added to the record was the report of a June 1992 psychiatric evaluation performed in July 1992 by Ned Littell, M.D., which indicates that the veteran related that he was only in active service one or two days when he was taken to a psychiatric hospital where he remained until his separation. The discussion indicates that the veteran presented in a very manic state, with a history of severe impairment since at least 1958. The report states that the veteran's suspiciousness prevented the physician from obtaining much information regarding his mental state prior to his hospitalization while in active service. The report notes that a history of spending only one to two days in active service prior to hospitalization is more indicative of a preexisting condition than a service-connected disability. The veteran's letter noting that he was given medication for his psychiatric disability while in active service is new, in that it was not before the Board at the time of the April 1985 decision, but is not material because it merely points out that the veteran was treated for a psychiatric disability while in active service. Evidence to that effect was before the Board at the time of its decision. The statements by Mr. [redacted] and Mr. [redacted] are new, in that they were not before the Board at the time of the April 1985 decision, but are not material. Mr. [redacted]'s statement is not material because he is a history teacher and his statement describes psychiatric symptoms. Although a layman is competent to provide an account of symptoms, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge." Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, observations about the veteran a number of years prior to service are not relevant to his psychiatric state at the time he entered service. Mr. [redacted]' statement is new but is not material because Mr. [redacted] first met the veteran after his active service and the statement contains nothing regarding the state of the veteran's health prior to his active service. The Social Security Administration decision and the July 1992 psychiatric evaluation by Dr. Littell are new but do not support his claim. The decision cites the report of a psychiatric evaluation that contains an opinion that the veteran had had a psychiatric disability his entire life. Similarly, Dr. Littell's examination report notes that the fact that the veteran was treated for a psychiatric disability after only one or two days of active service and states that this is more indicative of a preexisting disability than one that arose during active service. None of the evidence submitted since the April 1985 Board decision bears directly on the question at issue, i.e., whether the claimed condition had its onset in or was aggravated by service. For the reasons and bases discussed above, the Board finds that new and material evidence has not been submitted sufficient to reopen the appellant's claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Therefore, the April 1985 Board decision denying service connection for a psychiatric disability remains final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1105. ORDER New and material evidence not having been submitted to reopen a claim for a psychiatric disability, the appeal is denied. New and material evidence not having been submitted to reopen a claim for basic eligibility for pension benefits, the appeal is denied. V. L. JORDAN 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.