Citation Nr: 0003639 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-07 909 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for a psychiatric condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from November 1954 to November 1957. RO rating decisions in April 1972 and in July 1976 denied the veteran's claim for service connection for a nervous condition, on the basis that the veteran's nervous disorder in service was considered to have been an acute condition and the current psychiatric disorder was not shown to be related to the manifestations in service. A Board of Veterans' Appeals (Board) decision in November 1994 determined that new and material evidence had not been submitted to reopen a claim for service connection for an acquired psychiatric disability. This matter comes to the Board from a May 1997 RO rating decision that determined that new and material evidence has not been submitted to reopen the veteran's claim for service connection for a psychiatric condition. The veteran submitted a notice of disagreement in February 1998, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in May 1998. A personal hearing scheduled for October 1998 was canceled by the veteran. FINDINGS OF FACT 1. By RO rating decisions in May 1972 and July 1976, service connection for a nervous condition was denied. The veteran did not perfect an appeal from the 1976 decision. 2. A Board decision in November 1994 concluded that new and material evidence was not submitted to reopen the veteran's claim for service connection for a psychiatric condition. 3. The evidence received since the November 1994 Board determination does not bear directly and substantially upon the specific matter under consideration, is basically cumulative or redundant, and by itself or in conjunction with the evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The November 1994 Board decision, determining that new and material evidence was not submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric condition, is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. Evidence submitted since the 1994 Board decision is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Factual Background Service medical records show that the veteran was treated for general nervousness in November 1955. They reveal that the veteran was hospitalized for approximately two weeks in October 1956 for observation, with a provisional diagnosis of emotional disturbance. The veteran reported becoming increasingly edgy and nervous during the past two or three months, and that he was unable to eat or sleep recently, and was feeling a pressure upon him. The veteran reported thoughts of going AWOL and of making a suicidal gesture (swallowing several aspirin tablets) approximately three or four days prior to his hospital admission. The veteran also reported that he had suffered what he termed "a nervous breakdown" prior to his entry into military service, which necessitated his absence from school for about one week. Records show a diagnosis of: "Neurotic depressive reaction, acute, manifested by selfdepreciation [sic], tension, frustration. Stress; Minimal - Army life. Predisposition: Moderate - lifelong emotional instability. Impairment: Minimal for further duty. LD yes, Not PR." Service medical records dated in January 1957 report that the veteran was treated on an outpatient basis on several occasions by staff of the mental hygiene clinic. Records show a diagnosis of anxiety reaction, mild; the veteran was allowed to return to duty. Service medical records at the time of the veteran's separation examination in October 1957 note treatment for a nervous breakdown in 1956, and note normal neurologic and psychiatric findings at the time of the examination. Post-service medical evidence showed that the veteran had been nervous at least since high school. Statements by the veteran's physician in the early 1970s indicate that he was increasingly nervous and unable to cope with his everyday problems. He was hospitalized in 1971 for treatment of a severe anxiety attack. Subsequent records reflect varying psychiatric diagnoses, including schizophrenia, passive- aggressive personality, chronic anxiety neurosis, and depression. he was hospitalized several time sin the 1970s for treatment of psychiatric problems, as well as alcohol abuse. Evidence submitted since the 1994 Board decision includes copies of service medical records that were previously of record; a 1974 clinical record of a "treatment planning conference" from the psychiatric service; extracts of 1992 VA medical records, indicating that the veteran was unable to work due to his nervous condition; a 1996 VA medical record, noting treatment in service for anxiety and depression, and continuous treatment for anxiety and depression since 1972; 1996 VA medical records of treatment for anxiety and panic attacks, noting history; the report of a 1996 VA general medical examination, noting a diagnosis of chronic anxiety/depression; and a December 1996 award letter from the Social Security Administration, indicating that the veteran was eligible to receive Supplemental Security Income (SSI) because of disability. Statements of the veteran in the claims folder are to the effect that his nervous breakdown occurred first in service, that he has been treated for his nervous condition ever since, and that his Social Security award is based upon information taken from service medical records. B. Legal Analysis A Board decision is final with the exception that a veteran may later reopen a claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. The question now presented is whether new and material evidence has been submitted since the Board's adverse 1994 decision, determining that new and material evidence had not been submitted, to permit reopening of the veteran's claim. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1993); Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994); Manio v. Derwinski, 1 Vet. App. 140 (1991). In considering whether the claim may be reopened, a two-step analysis must be employed. First, the Board must determine whether the evidence submitted to reopen the claim is both new and material. Secondly, if, and only if, the Board determines that the evidence is both new and material, the claim is deemed to have been reopened and it must be evaluated on the basis of all of the evidence of record, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). The first step in the two-step analysis involves two questions: (1) is the newly presented evidence "new," that is, not previously submitted to agency decisionmakers, and not cumulative or redundant; and (2) is the newly presented evidence "material," that is, does it bear directly and substantially upon the specific matter under consideration, and is it so significant that it must be considered in order to fairly decide the merits of the claim? In addition, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is no requirement, however, that such evidence, when viewed in the context of all of the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). At the time of the November 1994 Board decision, the evidence of record showed that the veteran's nervous condition in service was considered to have been acute and no chronic nervous disorder that began in service was shown. The evidence added to the record after the 1994 Board decision shows no more than continuing treatment for a psychiatric disorder that was already known to be present. There is no new evidence indicating that the psychiatric disorder shown after service represented manifestations of the same illness for which the veteran was treated on occasion during service. While new, the evidence that has been added to the record since November 1994 does not present any new information regarding the question of service connection. It is not so significant that it must be considered to fairly evaluate the merits of the claim. It does not provide a more complete picture of the circumstances surrounding the claimed in- service origin of the veteran's current disability. Hence, the evidence is not "new and material." As new and material evidence has not been submitted since the November 1994 Board decision, the veteran's application to reopen his claim for service connection for a psychiatric condition is denied. ORDER In the absence of new and material evidence, the claim for service connection for a psychiatric condition is not reopened. William Harryman Acting Member, Board of Veterans' Appeals