BVA9506508 DOCKET NO. 93-08 811 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a nervous condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from March 1973 to August 1973. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its March 1974 rating determination the RO denied service connection for a nervous condition. In December 1992 the appellant requested that his claim be reopened and submitted additional evidence. Later in December 1992, the RO determined that the additional evidence submitted by the appellant was not new and material and the claim was not reopened. REMAND Initially, the Board has found that the appellant's claim for entitlement to service connection for a nervous condition is well-grounded in that his claim is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). The appellant's service medical records, and post-service medical records support this finding. Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The appellant's claim for entitlement to service connection for a nervous condition, evaluated by the RO as paranoid type schizophrenia, was denied in March 1974, based on their determination that the condition pre-existed service and was not aggravated therein. The appellant was timely notified of the decision and did not submit a Notice of Disagreement within one year from the date of mailing of notification of a determination, therefore the decision of the RO was final. In December 1992, the appellant requested that his claim be reopened and submitted additional evidence. Later in December 1992, the RO determined that the additional evidence submitted by the appellant was not new and material and the claim was not reopened. The rating action appears to indicate that the RO examined only the appellant's December 1992 letter and the attached piece of evidence in determining whether new and material evidence had been submitted. Once a final decision has been rendered on a claim, new and material evidence must be submitted to reopen the claim. "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 issues at hand and which must be of sufficient weight or significance 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, 98 (1993). Evidence previously of record includes service records, including the induction examination dated May 1972, which did not note any psychiatric defects, diagnoses or a history thereof upon entry. The appellant received continuous psychiatric treatment throughout service. Entries dated May 1973 reflect that the appellant reported hearing voices, feeling pressure in his head and experiencing nervousness for the past year. Proceedings conducted by the Medical Board resulted in a finding that the appellant suffered from paranoid schizophrenia, existing prior to service, and not aggravated by service. It was recommended that he be separated from duty. The veteran's signature appears on a copy of a disposition form dated July 18, 1973, in which he accepted the prima facie findings of the Medical Board that he was erroneously enlisted because he did not meet the procurement medical fitness standards for enlistment. Post service records indicate that the appellant's mental condition was consistently treated and evaluated at VA facilities from the time of his separation in 1973, through April 1986, the time of the most recent evidence of record. The evidence submitted in conjunction with the application to reopen includes a statement from a VA psychiatrist and the appellant's own written statements made in his Appeal to the Board received in March 1993. The statement of the VA psychiatrist which was not dated, but was received in December 1992, gives a listing of the appellant's medications, and states that: she has treated the appellant since 1973; that he is diagnosed with paranoid schizophrenia; that he has received 20 shock treatments in the past; and that in her opinion he is 100% disabled and unemployable "at this time." This evidence is essentially cumulative to evidence already of record. The appellant also submitted as new and material evidence a handwritten letter received by the RO in December 1992 in which he explains that prior to his entrance into service, he was a straight "A" student, and that since service, he has spent four years in mental hospitals and he is still suffering from his condition. This information is also previously of record. In his Appeal to the Board, received in March 1993, the appellant contended that prior to service he was not mentally ill and that he had never seen a psychiatrist or counselor. The appellant also related that he had been treated at the St. John's Hospital in Ohio, in the mid-70's and that he was trying to obtain these records. However, these records are not currently associated with the claims folder. The United States Court of Veterans Appeals (Court) has held that: Despite the finding that appellant did not submit new and material evidence to reopen his claims, this Court's decisions in White v. Derwinski, 1 Vet.App. 519 (1991), and Ivey v. Derwinski, 2 Vet.App. 320 (1992), stand for the proposition that, even absent the submission of new and material evidence, the duty to assist may still be triggered under appropriate circumstances. Counts v. Brown, 6 Vet.App. 473, 476 (1994) (Farley, J., Mankin, J. concurring). As one of the concurring opinions in Counts notes, this is undoubtedly an accurate characterization of the state of the case law, although the opinion observes there is no visible statutory support for the concept that there could be a "duty to assist" in the absence of a pending claim. Applying the case law of the Court to the facts now of record, the Board will defer a determination as to whether or not the evidence submitted by the veteran is adequate to reopen his claim. In light of Ivey and White, the Board concludes that the information provided by the appellant, regarding the possible existence of private treatment records which may constitute new and material evidence, is sufficient to warrant further action. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran and obtain the names, addresses and dates of treatment of all private medical providers who have treated him for a psychiatric disorder prior to and since his discharge from service. The RO should also provide him with the appropriate release of information forms in order to obtain copies of the actual medical treatment records from any private physicians, to include specifically, copies of the actual treatment records from Dr. Matthews, a psychiatrist who treated the appellant at St. John's Hospital in Cleveland Ohio, but whom the appellant believes can now be found at "Lkwd" Hospital in Ohio. Thereafter, all available medical records should be obtained 2. The RO is asked to obtain any VA outpatient treatment records and examinations subsequent to April 1986. 3. A VA psychiatric examination should be performed by in order to determine the nature and severity of any mental condition. The examination should be conducted in conformance with the VA's Physician's Guide for Disability Evaluation Examinations (1985). All testing deemed necessary should be performed including neurological testing. Upon review of the history of the condition, the examiner is asked to opine as to whether the appellant's condition pre-existed service, and if so, whether the veteran's symptoms of a psychosis increased in severity beyond natural progression during service. The claims folder and a copy of this remand should be made available to the examiner in conjunction with the examination. 4. After completing the above actions, the RO should determine whether the additional evidence presented and secured in conjunction with the appellant's application to reopen his claim is new and material evidence under the two-step analysis enunciated in Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In this regard, the RO should apply the principle articulated by the Court in Glynn v. Brown, 6 Vet.App. 523, 528 (1994), that all the evidence added to the record since the last final determination on the merits must be examined to determine if new and material evidence is of record to reopen the claim. If the appellant has produced new and material evidence, the claim is then reopened and the merits of the claim in light of all the evidence, both new and old, must be evaluated. Thereafter, the case should be reviewed by the RO. If the benefits sought are not granted, a supplemental statement of the case should be issued to the appellant and his representative and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this specific issue. RICHARD B. FRANK 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).