BVA9500346 DOCKET NO. 93-06 585 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence sufficient to reopen the veteran's claim for service connection for an acquired psychiatric disorder has been presented. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from March 1949 to June 1974. This appeal arises from a rating decision dated in March 1992 from the St. Petersburg, Florida, Regional Office (RO) which denied the veteran's request to reopen his claim for service connection for an acquired psychiatric disorder. The claim was received and docketed at the Board of Veterans' Appeals (Board) in March 1993, and is now ready for appellate review and consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred when it denied his request to reopen a claim for service connection for an acquired psychiatric disorder. He contends that several physicians in addition to Dr. Sapoznikoff, who issued the February 1992 report upon which the veteran's request to reopen is based, have opined that his acquired nervous disorder was incurred during service. He asserts that this disability began during active duty, continued after his retirement from the U.S. Air Force, and will require treatment for the remainder of his life. 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. 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 sufficient to reopen the veteran's claim for service connection for an acquired psychiatric disorder has not been presented. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In a decision dated in January 1988, the Board denied the veteran's claim for service connection for an acquired psychiatric disorder, and this decision is final. 3. The evidence submitted since 1988 consists of a private medical report from Dr. Sapoznikoff, part of which is both cumulative and duplicative of a report submitted by this same physician in March 1987, and part of which, while new, is not relevant or probative on the issue of whether the veteran's diagnosed psychiatric disorder is related to service. 4. The duty to assist the veteran does not require the VA to obtain the opinion of an independent medical expert where new and material evidence sufficient to reopen a previously denied claim has not otherwise been submitted. CONCLUSIONS OF LAW 1. Evidence both new and material sufficient to reopen a claim for service connection for an acquired psychiatric disorder has not been presented. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1994). 2. An independent medical expert opinion is not required to determine whether or not new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. In January 1988, the Board denied the veteran's claim for service connection for an acquired psychiatric disorder. Under governing law and regulations, the prior decision of the Board is final, and the claim may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); 38 C.F.R. § 3.156 (1994); Manio v. Derwinski, 1 Vet.App. 140 (1991). New and material evidence means evidence, not previously submitted to the RO, which is not cumulative or redundant, and which is relevant and probative on the issue under consideration. To reopen the claim, there must be a reasonable possibility that the outcome would differ when the new evidence is considered in light of all the evidence. 38 C.F.R. § 3.156 (1994); Colvin v. Derwinski, 1 Vet.App. 171 (1991). In determining whether evidence is sufficiently material to support reopening of a claim, the credibility of the evidence must be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). In its January 1988 rating action, the Board considered the veteran's service medical records, dated from 1949 to 1974, as well VA examination reports dated in August 1974 and April 1975, treatment records dating from 1983 to 1987, and the report of Dr. J. B. Sapoznikoff, dated in March 1987. Dr. Sapoznikoff noted that he had treated the veteran since December 1985 for psychiatric problems, including fear of flying, a fear of bridges and a generalized fear of heights. He opined that the veteran's current psychiatric condition had its onset during service, and the ultimate diagnosis was agoraphobia with panic attacks. In association with his request to reopen his claim, the veteran has submitted another report from Dr. Sapoznikoff, dated in February 1992, which he contends is new and material evidence in support of his claim. We note, however, that with the exception of a more recent date, different stationery, and the addition of one paragraph near the end of the report, Dr. Sapoznikoff's 1992 letter is identical to the letter he submitted in 1987, and repeats the same history and findings verbatim. The only additional findings are given in a paragraph which states: Over the years that I have been seeing [the veteran] he has continued to be bothered by his Panic Disorder with Depressive, Phobic and Obsessive-Compulsive features. He has however made gradual improvement. With the improvement he has been able to make some decrease in his level of medication. [The physician then describes the various medications which he has prescribed.] He has become more outgoing and much less Agoraphobic. Through my encouragement he has made several trips over the past few years up north, to visit his son, handling the bridges and tunnels along the way. He still reports being anxious while doing so, but at least he is doing it. He is also enjoying a local Coast Guard Auxiliary and appears to be becoming more active with them as time goes on. He finally got through a very ugly divorce and is going through a recovery process and has now gotten somewhat involved with a "girlfriend." [The veteran] is getting better very gradually. He is still in need of very recurrent out-patient psychiatric treatment. Dr. Sapoznikoff thereafter repeated his March 1987 conclusion that the veteran's "present emotional state was caused by his emotional stress while in the Air Force" for which he was treated prior to discharge. Inasmuch as the overwhelming majority of Dr. Sapoznikoff's 1992 report is identical to the 1987 letter considered by the Board in its previous denial, the repetitious portions of the newly submitted letter cannot constitute "new" evidence as they are wholly duplicative and cumulative of information previously reviewed by the Board. Moreover, the only new information contained in the 1992 letter, as quoted above, is not material to the veteran's claim. It does not pertain to the central issue of whether his current psychological difficulties are related to service. This paragraph describes only the progress that has been made through his therapy with Dr. Sapoznikoff, and recent developments in his personal life which have affected his recovery. As none of the information contained in this paragraph, or in the remainder of the report, could possibly change the outcome of the previous decision, it is neither relevant nor probative, and is not sufficient to reopen his claim for service connection for an acquired psychiatric disorder. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). We note that in the informal presentation by the veteran's representative, dated in February 1993, it is argued that "this case has never been sent out for an independent medical opinion," and should be sent to a psychiatrist for an opinion on whether the veteran's present nervous condition is a result of his active service. When, in the opinion of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more independent medical experts who are not employed by the VA. See 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d) (1994). We do not conclude, however, that this case presents a situation where an opinion by an independent medical expert (IME) is either warranted or required. The veteran's current appeal is centered on the issue of whether or not new and material evidence has been presented which is sufficient to reopen his claim for service connection for a psychiatric disorder, a claim for which a final decision was previously made in January 1988. We have already determined that Dr. Sapoznikoff's February 1992 letter is not new and material, inasmuch as it is, in almost all respects, identical to a letter submitted by this same physician more than four years earlier. As new and material evidence has not been presented, the claim is not reopened, and de novo review on the merits of the claim may not be made. The United States Court of Veterans Appeals (Court) has stated that "[A} decision that . . . new and material evidence was not submitted is a denial that there is a claim; it is not a final denial or disallowance of a claim." See Glynn v. Brown, 6 Vet.App. 523, 528 (1994) (emphasis in the original). Inasmuch as we have determined that new and material evidence has not been presented, we have essentially denied that the veteran has a claim. This does not mean that he cannot attempt to reopen his claim again in the future with the submission of new and material evidence. Nevertheless, he has no current claim upon which to continue his appeal. Thus no medical complexity or controversy has been presented for which an IME opinion may be sought. Moreover, the Court has indicated that where a well-grounded claim was previously and finally denied, and where new and material evidence is not presented, the VA's statutory duty to assist will exist in only two circumstances: First, where the claimant has specifically requested certain assistance (private medical records) which might help to substantiate his claim (see White v. Derwinski, 1 Vet.App. 519, 520-21 (1991)(VA has "duty to help the veteran obtain facts that might enable him to sustain his burden of proof or develop the facts of his claim", id. at 521); 38 C.F.R. § 3.159 (1991)); and, second where the evidence before the Board raised sufficient notice of pertinent records (again, private medical records) which may constitute new and material evidence sufficient to justify reopening a prior claim (see Ivey v. Derwinski, 2 Vet.App. 320, 323 (1992); id. at 325-30 (concurring opinion of Steinberg, J.)). Gowen v. Derwinski, 3 Vet.App. 286 (1992) (emphasis in the original). In both cases, however, the VA's duty to assist is limited to obtaining that evidence which is either known, or suspected, to exist, and which may be sufficient to reopen a finally denied claim if it could be obtained. An IME opinion, however, is wholly prospective and speculative in nature. It does not exist until a request for such an opinion is made by the Board. Thus obtaining an IME opinion does not fall within the parameters of our duty to assist the veteran, inasmuch as his request to reopen a previously and finally denied claim has been denied. ORDER The veteran's request to reopen his claim for service connection for an acquired psychiatric disorder is denied. BETTINA S. CALLAWAY 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.