BVA9501311 DOCKET NO. 93-05 982 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a psychiatric disorder to include post- traumatic stress disorder (PTSD) has been submitted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from September 1969 to April 1972. The instant appeal is from the Department of Veterans Affairs (VA) Regional Office (RO) decision of August 1992, which declined to reopen a claim for service connection for a psychiatric condition to include post-traumatic stress disorder, finding the appellant had not submitted new and material evidence with which to reopen the claim. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has submitted new and material evidence to reopen his claim for service connection. He argues that review of the reopened record will prove that he had a psychosis in service, symptoms of which were masked by drug abuse. 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(s). 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 has not been presented or secured with which to reopen a claim for service connection for a psychiatric disorder to include PTSD. FINDINGS OF FACT 1. A claim for service connection for a psychiatric disorder claimed as PTSD and diagnosed as bipolar disorder was denied by a rating decision of July 1982 and confirmed by a rating decision of January 1983 while the claim was in appellate status. 2. The appellant withdrew his perfected appeal in a signed statement filed at the RO February 11, 1983. 3. Evidence presented or secured since the July 1982 RO denial of service connection for a psychiatric disorder on the merits comprises VA outpatient records from September 1986 to January 1992; VA examination reports from March to May 1992; a statement of November 1992 from the appellant's ex-wife, and a statement from the appellant of February 1993. 4. The evidence presented or secured in an attempt to reopen the previously disallowed claim does not raise a reasonable possibility of changing the results of the July 1982 rating decision. CONCLUSIONS OF LAW 1. The rating decision of July 1982, denying service connection for a psychiatric disorder to include PTSD, is final. 38 U.S.C.A. §§ 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.204, 20.1104 (1993). 2. New and material evidence to reopen a claim for service connection for a psychiatric disorder to include PTSD has not been presented or secured. 38 U.S.C.A. § 5108 (1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 1982 the RO denied a claim for service connection for a psychiatric disorder claimed as PTSD and diagnosed in May 1982 as bipolar disorder. The appellant timely filed a notice of disagreement and a substantive appeal. 38 C.F.R. § 20.302 (1993). Upon receipt of additional evidence in connection with the claim pending, see 38 C.F.R. § 3.156(b) (1993), the denial of service connection was confirmed and continued in a rating decision of January 1983. The appellant withdrew his appeal in February 1983, 38 C.F.R. § 20.204 (1993), and the appeal period lapsed without an appeal in a perfected status. See 38 C.F.R. § 20.1104 (1993). The evidence of record when the appellant's claim was previously considered on its merits comprised service medical and personnel records; records of a two day VA hospital admission for drug rehabilitation in March 1972, which diagnosed drug abuse and "no psychiatric diagnosis;" a VA hospital discharge summary of May 1983 showing a diagnosis of bipolar disorder and substance abuse; a VA examination report showing a diagnosis of bipolar disorder and "PTSD not found;" VA outpatient treatment records from June 1982 to October 1982; and a transcript of the appellant's testimony at a hearing at the RO on October 1982 in which he testified that he was shot at by the enemy during helicopter reconnaissance and other missions in Vietnam and that after service he had had nightmares of explosions and firing a machine gun, but they had decreased in frequency to one in three months. The RO determined that no psychiatric disorder was shown during service; that no psychosis was shown during the one year following separation from service and that PTSD was not currently shown. The claim was denied. In January 1992, the appellant again submitted a claim (VA Form 21-526) for service connection for "mental problems/PTSD." Since the prior final denial, the evidence presented or secured in regards to the appellant's attempt to reopen his claim comprises VA outpatient treatment records from September 1986 to January 1992 reporting on multiple psychotherapy sessions, especially in 1986, and otherwise showing occasional treatment or prescription of medication; VA examination reports, including psychiatric examination and testing reports of April and May 1992, which diagnosed chronic paranoid schizophrenia and ruled out PTSD. In a statement of November 1992 [redacted], apparently his ex-wife, stated, essentially, that the appellant was out of touch with reality on many occasions during the time they lived together between 1973 and 1983, that he attempted to strangle and hit her during dreams in 1973 and 1974, stating upon awakening that he feared for his life because "Viet Cong" were after him, and over the years nightmares became less frequent but daytime hallucinations were present almost daily. The appellant submitted a statement in February 1993 opining that his psychosis was present in service, but masked by drug use. The United States Court of Veterans Appeals (the Court) has summarized case law on claims to reopen previously and finally disallowed claims: [T]he RO or BVA must conduct a two-step analysis. First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". If it is, the RO or Board must then review the new evidence "in the context of" the old to determine whether the prior disposition of the claim should be altered. "New" evidence is evidence which is not "merely cumulative" of other evidence in the record. Evidence is "material" when it is relevant to and probative of the issue at hand and 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." In determining whether evidence is new and material, "the credibility of the evidence must be presumed." Bernard v. Brown, 4 Vet.App. 384, 389 (1993) (citations omitted). Additionally, the evidence to be reviewed for sufficiency to reopen a claim is all the evidence submitted since the most recent denial of the claim on its merits. Glynn v. Brown, 6 Vet.App. 523 (1994). The evidence submitted since the RO last reviewed on its merits the claim originally denied in July 1982 does not satisfy the regulatory definition of new and material evidence, 38 C.F.R. § 3.156(a) (1993), or the tests of sufficiency to reopen claims as set forth in case law. Bernard at 398. Taking all the medical evidence as credible, Justus v. Principi, 3 Vet.App. 510 (1992), it is cumulative in ruling out a diagnosis of PTSD. It does not trace the onset of any other psychiatric disorder to a point in time prior to May 1982. Those facts were established by the evidence of record when the original decision was confirmed in January 1983. The evidence subsequently submitted is adverse to the appellant's claims, and adverse evidence cannot be new and material. The extensive VA outpatient records inform about the ongoing status of the appellant's psychiatric symptoms, without addressing the time of onset, at least not so as to provide any insight to the appellant's mental status prior to 1982. Neither do the VA examination reports tend to link the latest diagnosis, chronic paranoid schizophrenia, with service in any way. The references in the medical record secured since the prior final denial of the claim reiterate the appellant's previously of record testimony that he came under fire in Vietnam, and hence is purely cumulative or redundant. 38 C.F.R. § 3.156(a) (1993). Consequently, the medical evidence secured is new, but it is not relevant or probative of the question of whether the appellant had PTSD or any other psychiatric disorder in service or, as to a psychiatric disorder subject to a presumptive period, see 38 C.F.R. §§ 3.307, 3.309 (1993), whether the presumptive criteria were satisfied. The statement from Ms. [redacted], taken as credible, Justus, 3 Vet.App. 510, purports nothing more than that the appellant attempted to strangle or hit her and averred that he dreamed Viet Cong were after him, that he seemed out of touch with reality, and that he began having hallucinations at an unspecified time between 1973 and 1983, and to the extent that she reports observations it is within her competence as a lay person, i.e., what he did, what he said, and how he acted. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). It is not competent medical evidence to establish any diagnosis and conclusions that are medical in nature, i.e., the presence of hallucinations cannot be accepted. Id. It is not, even taken as credible, relevant or probative to establish that the appellant had PTSD or any other psychiatric diagnosis during or within one year following service; it produces no reasonable possibility a different result than was last achieved could follow from reopening the claim. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The February 1993 statement by the appellant, that he had a psychosis in service that was masked by drug use is his medical theory proffered as a lay person. As such, it cannot be new and material. Espiritu, 2 Vet.App. 492. In sum, the evidence presented or secured in conjunction with the appellant's attempt to reopen a finally disallowed claim is not new and material, 38 C.F.R. § 3.156(a) (1993), and the claim may not be reopened. 38 U.S.C.A. § 5108 (West 1991). ORDER New and material evidence not having been presented or secured to reopen a claim for service connection for a psychiatric disorder to include PTSD, the benefit sought on appeal is denied. KENNETH R. ANDREWS, JR. 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.