Citation Nr: 0005325	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  97-00 839	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
residuals of lysergic acid diethylamide (LSD) testing.


REPRESENTATION

Veteran represented by:	Arizona Veterans Service 
Commission


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

K. Conner, Associate Counsel

INTRODUCTION

The veteran had active naval service from November 1950 to 
October 1952, and active air service from January 1954 to 
February 1972.  This matter comes to the Board of Veterans' 
Appeals (Board) from an April 1996 rating decision of the 
Department of Veterans Affairs (VA) Phoenix Regional Office 
(RO).  

It is noted that, on an April 1996 VA Form 9 (submitted as 
his Notice of Disagreement), the veteran requested a personal 
hearing before a Member of the Board at the RO.  On an 
attached cover letter, however, the veteran's representative 
indicated that the veteran wanted a "local hearing."  In 
November 1996, the veteran testified before a local Hearing 
Officer at the RO.  In his subsequently-submitted substantive 
appeal, the veteran indicated that he did not wish to appear 
personally at a hearing before a Member of the Board at the 
RO.  Absent a further request for a Travel Board hearing, 
therefore, the Board will proceed with consideration of his 
claim based on the evidence of record.  


FINDINGS OF FACT

1.  By February 1993 rating decision, the RO denied service 
connection for residuals of LSD testing; no appeal was 
initiated within one year following notice thereof to the 
veteran in February 1993.

2.  Evidence received since the last final February 1993 
rating decision is either cumulative or does not bear upon 
the specific matter under consideration, and thus does not 
provide a new factual basis on which to reopen the veteran's 
claim of service connection for residuals of LSD testing.  



CONCLUSIONS OF LAW

1.  The February 1993 rating decision which denied service 
connection for residuals of LSD testing is final.  38 
U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.1100 
(1999).

2.  New and material evidence has not been received to 
warrant reopening of the claim of service connection for 
residuals of LSD testing.  38 U.S.C.A. §§ 5107, 5108 (West 
1991); 38 C.F.R. § 3.156 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

The veteran's service medical records confirm that from April 
12-14, 1960, he participated in an experiment in which he and 
other volunteers were administered LSD.  A careful review of 
the subsequent service medical record, however, is negative 
for complaints of, or treatment for, symptomatology 
attributed to his participation in the LSD experiment.  

For example, in January 1966, he sought treatment for a 
headache, dizziness, cold symptoms, and general malaise.  The 
impression was cold.  Later that month, he again reported a 
headache after hitting his head; the impression was soft 
tissue injury.  In February 1966, he reported a headache, 
post-nasal drip, and cough of several days duration; the 
impression was acute sinusitis.  In March 1968, he reported 
diarrhea and a headache after being bitten by a spider; the 
impression was probable reaction to spider bite.  In July 
1968, the veteran reported headaches and rhinorrhea; sinus X-
rays were negative and the impression was tension headaches 
and rhinitis.  In June 1969, he went to the emergency room 
with complaints of dizziness, headaches, shortness of breath, 
and a headache.  However, apparently upon being informed that 
there would be a wait for treatment, he indicated that he 
would go home and go to bed.  

In January 1969, the veteran had an ophthalmologic 
consultation in connection with his complaints of blurred 
vision; the impression was bilateral hyperopic astigmatism.  
In November 1969, he reported an episode of syncope on 
getting up.  Neurological examination was normal; the 
impression was syncope, probably postural hypotension or 
vasovagal.  On December 1970 periodic physical examination, 
the veteran's head, eyes, and pupils were normal on clinical 
evaluation.  Clinical neurologic and psychiatric evaluations 
likewise revealed no abnormality.  In January 1971, he 
complained of a cold and difficulty breathing; the impression 
was upper respiratory infection.

At his August 1971 military retirement physical examination, 
the veteran had numerous complaints, including rare headaches 
relieved by Darvon.  He also reported depression related to 
family problems; the examiner indicated that the veteran's 
symptoms should resolve when he was reunited with his family.  
In addition, a history of one episode of syncope in 1954, 
attributed to heat exhaustion, and one episode of syncope in 
1969, diagnosed as postural hypotension, was noted; the 
examiner indicated that there were no complications of 
sequelae from these episodes.  Also noted was the fact that 
the veteran had been prescribed corrective lenses for reading 
in 1967.  On clinical evaluation, no pertinent abnormality 
was evident.

Following his separation from service, in March 1972, the 
veteran filed claims of service connection for several 
disabilities; however, his application is silent for any 
notation of LSD testing or claimed residuals thereof.  In 
connection with his claim, he was afforded a VA medical 
examination in March 1972 at which time no pertinent 
abnormality was noted.  Examination of the eyes was normal, 
as was neurologic and psychiatric examination.

In October 1974, he filed a claim of service connection for 
epididymitis.  His application is silent for notation of 
claimed residuals of LSD testing.  In support of his claim, 
the RO obtained clinical records identified by the veteran, 
dated from September to October 1974; these records are 
likewise negative for complaint or clinical finding of 
symptomatology attributable to LSD testing in service.

On June 1975 VA medical examination conducted in connection 
with the veteran's June 1975 claims for increased ratings for 
his service-connected disabilities, the veteran reported 
occasional blackout sensations and frequent headaches.  The 
impressions included tension headaches.  No reference was 
made to claimed residuals of LSD testing.

In March 1977, the veteran was hospitalized with complaints 
of severe back pain.  During that hospitalization, he 
underwent a neurological work-up in connection with 
complaints of persistent headaches; no objective abnormality 
was discovered.  The veteran also reported eye difficulties; 
an eye consultation revealed allergic conjunctivitis.  He was 
also sent for psychiatric work-up in light of his reports 
that his back symptoms had not improved with medication and 
physical therapy.  The psychiatrist determined that the 
veteran had inadequate adaptation to life situations and a 
passive-aggressive personality with possible 
psychophysiologic disorder.  The diagnoses on discharge 
included headaches of unknown etiology.  No reference to LSD 
testing was recorded.

In May 1977, the veteran underwent a retrospective LSD 
experience evaluation at which time he reported that he 
volunteered for the experience secondary to needing a break 
from his routine and out of patriotic duty.  He described 
being given a cup of water and a cube of sugar one morning, 
followed by feelings of the walls, ceilings, floors and other 
stationary objects moving.  He also reported olfactory 
hallucinations and an altered state of consciousness.  He 
stated that he did not feel normal for approximately a week 
thereafter, with lingering anger and some paranoia being the 
last symptoms to cease.  He stated that for approximately six 
months after the experiment, he had weekly flashbacks of 
short duration (lasting seconds to minutes) characterized by 
decreased concentration and preoccupation inappropriate for 
environmental circumstances.  He stated that, in the last 
five years, such episodes had occurred maybe once or twice.  
He stated that the episodes had not been frightening and he 
was unable to tell if his experiences with LSD initiated or 
sustained any personality changes.  On mental status 
examination, he exhibited mild reactive depression, related 
to financial and family difficulties.  There was no evidence 
of any thought pathology.  Neurological consultation revealed 
no organic deficits; the veteran's headaches were felt to be 
of tension origin.  Psychological evaluation revealed no 
evidence of organic impairment; some personality traits of 
high energy level and affective-hysterical orientation were 
suggested, but these were felt to be within normal limits.  
The diagnoses were marital maladjustment, manifested by 
feelings of tension and mild reactive depression, and no 
mental disorder.  The examiner concluded that the veteran had 
not been untowardly affected by his experience with LSD.  

In September 1983, the veteran was hospitalized for 
diagnostic studies in connection with his reports of 
transient left monocular blindness.  An arch angiography 
failed to reveal any extracranial disease.  The diagnosis on 
discharge was idiopathic symptoms of transient left monocular 
blindness.  No reference to residuals of LSD testing was 
recorded.

A March 1987 VA clinical record shows that the veteran sought 
treatment for a kaleidoscope effect in his eyes.  His 
symptoms were attributed to a migraine headache.  

In August 1987, the veteran underwent VA medical examination 
in connection with a claim of service connection for an 
unrelated disability.  On examination, he complained, inter 
alia, of frontal headaches and double vision associated with 
hearing loss and tinnitus.  He also reported experiencing 
attacks of amaurosis fugax and stated that he had been told 
that his neck arteries were clear and that his attacks were 
associated with migraine headaches.  Physical examination 
revealed no pertinent abnormalities.  No references to LSD 
testing were recorded.

In October 1991, the veteran filed a claim of service 
connection for residuals of LSD testing in service.  He 
stated that he had numerous disabilities as a result of such 
testing, including bouts of severe depression, continuous 
headaches, color burst hallucinations in his eyes, constant 
high pitched auditory hallucinations, difficulty sleeping and 
fatigue.  

In connection with his claim, the veteran underwent VA 
psychiatric examination in July 1992, at which he reported a 
history of fleeting blindness, headaches, seeing a 
kaleidoscope of color, and fatigue.  He also reported 
feelings of sadness.  The veteran reported that he had been 
given hallucinogenic drugs in service as part of an 
experiment and felt that his symptoms were residuals of LSD.  
On mental status examination, his conversation was goal 
directed, his affect was appropriate, judgment and insight 
were present, and there was no expression of psychotic 
ideation.  Mood was described as "down" but there was no 
suggestion of cognitive impairment.  The impression was 
dysthymic disorder.  This diagnosis was not related by the 
examiner to the veteran's in-service LSD testing.

On a subsequent VA psychiatric examination in October 1992, 
the veteran reported continuous headaches since 1960, 
accompanied by ringing in the ears, sometimes influenced by 
stress.  He also reported flashes of light and brown-outs in 
his left eye, usually accompanied by dizzy spells.  He 
reported that in 1960, when he took LSD, he had sleep 
disturbance, loss of taste, and increased irritability.  He 
reported that when he was driving, the median strip would 
occasionally split and divide in front of him.  The diagnosis 
was no evidence of a psychiatric disorder.

By February 1993 rating decision, the RO denied service 
connection for residuals of LSD testing, including 
depression, headaches, audio and visual hallucinations, and 
trouble sleeping.  The veteran was notified of this decision 
by February 1993 letter to his address of record.  He did not 
initiate an appeal within the applicable time period.

In April 1995, the veteran submitted an application to reopen 
his claim of service connection for residuals of LSD testing.  
Evidence submitted or otherwise associated with the claims 
folder since that time includes May 1995 and June and 
September 1996 VA medical examination reports which are 
negative for complaints or clinding findings pertaining to 
claimed residuals of LSD testing.

In a September 1995 statement, the veteran's representative 
argued that the symptoms experienced by the veteran 
(including flashbacks, reactive depression, headaches, 
fleeting blindness, crying spells, etc.), were actually 
unrecognized residuals of LSD testing.  He also contended 
that the long-term residuals of LSD use were unknown in the 
medical community.  

At the request of the veteran, the RO obtained medical 
records from the Social Security Administration (SSA) which 
had been compiled in connection with an unsuccessful 
application for SSA disability benefits.  Those medical 
records included a March 1995 psychiatric examination at 
which the diagnoses included somatization disorder and 
narcissistic personality disorder.  The examination report is 
negative for complaints or notations of residuals of LSD 
testing.  

Also obtained was a January 1994 psychological evaluation at 
which the veteran reported, inter alia, continuous headaches 
since the late 1950s.  He stated that their onset coincided 
with his withdrawal from an experimental program in which he 
was administered LSD.  He also reported that, soon after he 
left the experiment, he went to military doctors complaining 
of fleeting blindness, as well as headaches and ringing in 
his ears.  He stated that the military doctors told him that 
his problems were "all in his head."  With respect to 
current complaints, the veteran reported daily migraine 
headaches.  The diagnoses included somatoform pain disorder.  

In a May 1996 statement, the veteran's wife indicated that he 
had been changed by the in-service LSD testing.  She 
indicated that he had restless sleep, snoring, chronic pain, 
night blindness, and depression.  

In November 1996, the veteran testified at a hearing at the 
RO to the effect that he had been administered LSD in the 
late 1950s or early 1960s, and that he thereafter developed 
migraine headaches, minor hallucinations, tinnitus, and 
marital problems.  He stated that he sought treatment in 
service for the symptoms, but was advised that they were 
psychosomatic.  Since that time, he acknowledged that, other 
than an examination in the 1970s, he had never seen a 
physician regarding residuals of LSD testing.  Nevertheless, 
he indicated that he felt the in-service LSD testing had 
resulted in current residuals of depression, intermittent 
blindness, kaleidoscopic vision, double vision, and 
headaches.  

VA outpatient treatment records dated from January 1998 to 
May 1999 show that the veteran was seen on numerous 
occasions; however, the records are negative for clinical 
notation of residuals attributable to LSD testing.

II.  Analysis

As set forth above, by February 1993 rating decision, the RO 
denied service connection for residuals of LSD testing.  
Although the veteran was notified of this decision and his 
procedural and appellate rights by February 1993 letter, he 
did not timely appeal the decision.  Thus, it is final.  38 
U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.

The veteran now seeks to reopen his claim of service 
connection for residuals of LSD testing.  Despite the 
finality of a prior adverse decision, a claim will be 
reopened and the former disposition reviewed if new and 
material evidence is presented or secured with respect to the 
claim which has been disallowed.  38 U.S.C.A. § 5108 (West 
1991); 38 C.F.R. § 3.156 (1999).  

The U.S. Court of Appeals for Veterans Claims (Court) has 
held that a three-step analysis must be performed when a 
claimant seeks to reopen a previously denied claim.  Winters 
v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. 
App. 209 (1999).  

First, it must be determined whether new and material 
evidence has been presented under 38 C.F.R. § 3.156(a).  
Second, if new and material evidence has been presented, the 
case must be reopened and immediately upon reopening the 
Secretary must determine whether, based upon all the evidence 
and presuming its credibility, the claim as reopened is well 
grounded pursuant to 38 U.S.C. § 5107(a).  Third, if the 
claim is well grounded, the Secretary may evaluate the merits 
after ensuring that the duty to assist under 38 U.S.C.A. 
§ 5107(b) has been fulfilled.  Id.  

Under applicable regulation, "new and material evidence" is 
defined as evidence not previously submitted to agency 
decision makers 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); see 
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Fossie v. 
West, 12 Vet App 1 (1998).  

In Hodge, the Federal Circuit noted that not every piece of 
new evidence is "material," but that some new evidence may 
well contribute to a more complete picture of the 
circumstances surrounding the origin of a veteran's injury or 
disability, even where it will not eventually alter a rating 
decision.  Id., 155 F.3d at 1363.

In determining whether evidence is new and material, the 
credibility of the evidence is generally presumed.  Justus v. 
Principi, 3 Vet. App. 510, 512-513 (1992).  However, this 
presumption of credibility is not unlimited.  The Court has 
subsequently held that the Justus credibility rule is not 
"boundless or blind;" if the newly submitted evidence is 
"inherently false or untrue," the Justus credibility rule 
does not apply.  Duran v. Brown, 7 Vet. App. 216 (1994).  

With these considerations, the Board must now review the all 
of the evidence which has been submitted by the veteran or 
otherwise associated with the claims folder since the last 
final decision in February 1993.

As set forth above, this additional evidence includes a March 
1995 private psychiatric examination report, reports of VA 
medical examinations conducted in May 1995, and June and 
September 1996, as well as VA outpatient treatment records 
dated from January 1998 to May 1999.  However, these records 
are entirely negative for clinical reference to in-service 
LSD testing or claimed residuals attributed thereto.  Thus, 
as this evidence is not pertinent to the specific matter 
under consideration, namely whether any current disability is 
of service origin, it is not new and material evidence.  

With respect to the September 1995 written argument of the 
veteran's representative, the testimony of the veteran at the 
November 1996 hearing, as well as the written statements of 
the veteran and his spouse to the effect that he currently 
experiences symptoms such as depression, visual disturbances, 
etc., secondary to LSD testing in service, the Board finds 
such statements are cumulative, redundant and reiterative of 
other statements previously considered by the RO at the time 
of the February 1993 rating decision.  Simply put, the 
current assertions contain essentially the same assertions as 
those considered by the RO in its prior decision.  

Moreover, the Board notes that as the record does not 
establish that the veteran, his spouse, or his accredited 
representative possess a recognized degree of medical 
knowledge, they lack the competency to provide evidence that 
requires specialized knowledge, skill, experience, training 
or education.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), 
the Court noted that lay persons are not competent to offer 
medical opinions or diagnoses and that such evidence does not 
provide a basis on which to reopen a claim of service 
connection.  

Regarding the January 1994 psychological evaluation report 
noting the veteran's reports of symptoms such as headaches, 
fleeting blindness, and ringing in his ears since the in-
service LSD testing, the Board finds also that this evidence 
is not "new and material" because the information contained 
in this medical certificate is cumulative of evidence 
previously considered.  Therefore, such evidence does not 
present a new factual basis on which to reconsider the 
veteran's claim.  It is relevant only to state that the 
veteran has reported (relatively recently) having experienced 
various symptoms which he attributes to in-service LSD 
testing, which happened many decades earlier.  These lay 
assertions were previously considered by the RO.  As such, 
this evidence is not material and cannot serve to reopen the 
claim.  38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156.  

In view of the foregoing, the Board concludes that the 
additional evidence submitted since the February 1993 rating 
decision is not new and material and does not warrant a 
reopening of the veteran's claim of service connection for 
residuals of LSD testing.  38 U.S.C.A. § 5108; 38 C.F.R. § 
3.156.  Accordingly, the February 1993 rating decision 
denying service connection for residuals of LSD testing 
remains final and this appeal must be denied.

The veteran is advised that if he is able to obtain competent 
medical evidence identifying a current disability which is 
related to his documented in-service LSD testing, he may 
resubmit his application to reopen his claim at that time.


ORDER

New and material evidence not having been submitted to reopen 
the claim of service connection for residuals of LSD testing, 
the appeal is denied.



		
	J.F. GOUGH
	Member, Board of Veterans' Appeals