BVA9507781 DOCKET NO. 93-15 749 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability, to include an organic brain disorder classified as psychic seizures. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and [redacted]. ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from February 1962 to February 1965. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 1992 rating decision of the Portland, Oregon Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a mental disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he has submitted new and material evidence to reopen his claim for service connection for a psychiatric disability, to include an organic brain disorder classified as psychic seizures. He argues that a newly submitted 1988 magnetic resonance imaging scan (MRI) of the brain reveals old brain trauma which, in his opinion, was incurred during service. He further argues that his current psychiatric disabilities, including psychic seizures are attributable to such alleged inservice head trauma. 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 appellant'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 no new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability, to include an organic brain disorder classified as psychic seizures. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. By a Board decision dated in June 1987, service connection for various psychiatric disabilities was denied. 3. Additional evidence submitted subsequent to that final decision on the merits, when viewed in the context of all the evidence, does not present a reasonable possibility of changing the outcome, since it does not tend to show that the appellant incurred a chronic psychiatric disability or organic brain disorder in service, or manifested a psychosis within the one year presumptive period after service. CONCLUSIONS OF LAW 1. Evidence received subsequent to the Board decision of June 1987, which denied service connection, in part, for a psychiatric disability to include an organic brain disorder, is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 2. The June 1987 Board decision denying entitlement to service connection for a psychiatric disability to include an organic brain disorder is final. 38 U.S.C.A. § 7104, (West 1991); Glynn v. Brown, 6 Vet.App. 523 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. See Counts v. Brown, 6 Vet.App. 473 (1994), (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances." ) (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative private medical records, or when evidence already before the board raises sufficient notice of possible probative private medical records). The appellant has not requested the Board to obtain nor reported any additional medical treatment not already associated with the claims folder. Therefore, the Board concludes that the service medical records and post-service clinical reports of record are adequate for reaching a fair, well-reasoned determination in this case; and the duty to assist the appellant in the development of facts pertinent to his claim as contemplated by 38 U.S.C.A. § 5107(a) and applicable case law has been satisfied. The evidentiary record reflects that the appellant filed an initial application requesting, in part, entitlement to service connection for a psychiatric disorder in August 1966. By an October 1966 rating decision, such claim was denied. The record reflects that the appellant was notified of the decision that month, but failed to file a timely notice of disagreement therewith. In May 1973, the appellant attempted to reopen his claim for entitlement to service connection for a psychiatric disability, which was denied on the merits in an August 1973 rating decision. The appellant expressed disagreement with such decision that month, however, a timely appeal was never perfected to the Board. Thereafter, the appellant applied to reopen such claim in June 1986. By July 1986 rating decision, entitlement to service connection for a psychiatric disorder to include an organic mental condition with seizures and memory loss was apparently denied on the merits, and subsequently upheld in a June 1987 Board decision. The Board held that the appellant's psychiatric disability, regardless of classification, and seizures with memory deficit were not present during service or within one year of separation. This was the last final decision on the substantive merits of the claim. Glynn v. Brown, 6 Vet.App. 523 (1994). The appellant subsequently applied to reopen such claim in January 1992, which was denied in November 1992 on the basis that a 1988 MRI report did not constitute new and material evidence to reopen the claim. The appellant expressed disagreement with such decision in April 1993. Decisions of the Board on the merits are final, with the exception that they can be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104, (West 1991); 38 C.F.R. § 3.156 (1994); Glynn v. Brown, 6 Vet.App. 523 (1994); Henderson v. Brown, 6 Vet.App. 45, 46 (1994). The threshold issue for resolution is whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability to include an organic mental disorder classified as psychic seizures. Id.; see also Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more than evidence which was not previously physically of record; and it must be more than merely cumulative. To be "material", evidence must be relevant and probative to the issue at hand, and create a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171 (1991). Service connection is warranted for a chronic disease or injury, including a psychiatric disorder, incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 1991). If a disorder is not shown to be chronic during service, continuity of symptomatology after discharge is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1994). In the case of psychosis, service incurrence may be shown directly or may be presumed if the disease manifested to a degree of 10 percent or more within one year after the date of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Personality disorders as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. 3.303(c) (1994). The evidence which was of record prior to the Board's June 1987 final decision on the merits may be briefly summarized. Service medical records, including an examination upon entry and separation from service, do not contain any complaints, findings, or a diagnosis of a psychiatric disability or any related symptomatology, head trauma, or seizures. Relevant post-service evidence of record included VA inpatient (INP) records dated in July and August 1966 indicating a diagnosis of sociopathic personality disorder; VA INP records dated from February to May 1967 indicating treatment for sociopathic personality disturbance with antisocial reaction; a private clinical evaluation dated in June 1967 indicating antisocial behavior; October 1967 VA INP records indicating treatment for sociopathic personality disturbance; private INP records dated from October 1967 to May 1969 indicating treatment for schizophrenia, and dated in March 1973 indicating treatment for schizophrenia and an adjustment reaction; VA INP records dated from October to November 1979 indicating treatment for manic depressive disorder, manic type; VA INP records, including an electroencephalogram (EEG), dated from September to October 1984 indicating treatment for bipolar affective disorder, by history, and psychic seizures with left frontal temporal EEG abnormalities and short term memory deficit; and a September 1986 statement from [redacted] indicating that he served with the appellant and that the appellant had a major breakdown. Mr. [redacted] stated that the appellant was removing a tank escape hatch when suddenly his hands would not function. Following a review of all the aforementioned evidence, service connection for a psychiatric disorder to include psychic seizures, as well as for a neurological seizure disorder, was denied on the merits. Evidence which has come into record since that final June 1987 Board decision includes VA OPT treatment reports dated from November 1985 to February 1987, a December 1988 MRI of the head report, and sworn testimony from a June 1993 personal hearing. After a review of the record, we find that the aforementioned medical records are "new" in that they have not been considered before, but that all of the appellant's 1993 sworn testimony is merely cumulative. However, we are of the opinion that none of the additional evidence is "material" since there is no reasonable possibility that the additional evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174; Smith v. Derwinski, 1 Vet.App. 178 (1991). VA OPT reports dated from November 1985 to February 1987 indicated continued treatment with medication and therapy for current psychiatric disabilities. However, such records do not contain any evidence that his current disabilities were present during service, within the one year presumptive period, or are attributable to any in-service event or occurrence. Moreover, while the December 1988 MRI report reveals a small area of demyelination in the left cerebral hemisphere, there is absolutely no objective credible evidence that such organic brain damage occurred during service, or is attributable to any event or occurrence therein. Furthermore, there is no competent clinical evidence that such MRI finding are in any way causally or etiologically related to the appellant's current psychaitric disabilities or psychic seizures. In fact, the only evidence of record suggesting that the appellant incurred a psychiatric disability during service, or that he currently has an organic mental disorder attributable to alleged inservice head trauma or stroke is the appellant's statements and his sworn testimony, which are not supported by any competent clinical evidence of record. The objective clinical evidence clearly shows the appellant was treated for symptomatology diagnosed as "psychic seizures" beginning in 1984, with organic brain damage initially shown in 1988. Finally, both the appellant's and Mr. [redacted]'s sworn testimony regarding an alleged inservice head injury and subsequent personality changes, postservice treatment, and current psychiatric disabilities was previously considered by the Board, and is therefore cumulative. The record reflects that the appellant failed to submit any new evidence to support his previously considered contentions that his current psychiatric disability to include an organic brain disorder classified as psychic seizures are attributable to his military service. Although the appellant's and Mr. [redacted]'s statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis or medical causation of a disability, and cannot serve as a predicate to reopen the appellant's claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). Since the additional evidence does not suggest that a chronic psychiatric disability to include an organic brain disorder classified as psychic seizures was incurred in or aggravated by service or manifested within one year of separation, nor does it tend to show that such disabilities are attributable to service or to any event or occurrence therein, there exists no reasonable possibility that the new evidence, viewed in the context of all the evidence, would change the outcome. The evidence is not so evenly balanced as to raise a reasonable doubt. 38 U.S.C.A. § 5107. ORDER No new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability to include an organic brain disorder classified as psychic seizures, and the benefit claimed is denied. HOLLY E. MOEHLMANN 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.