BVA9503295 DOCKET NO. 91-42 246 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his mother ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from March 1972 to August 1973. This matter came before the Board of Veterans Appeals (Board) on appeal from decisions of November and December 1989 by the Department of Veterans Affairs (VA) Chicago, Illinois, regional office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to reopen and allow his claim for service connection for an acquired psychiatric disorder. He asserts that he did not begin having any psychiatric symptoms until after he entered service. It has also been argued that a prior decision of June 1975 which denied the claim was clearly and unmistakably erroneous. It has been requested that the case be remanded for the purpose of obtaining additional service medical records, including records of psychological testing conducted during service. 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 the veteran has not presented new and material evidence to reopen his claim for service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The veteran's claim for service connection for an acquired psychiatric disorder was previously denied by the RO in a decision of June 1975, and the veteran did not file an appeal. 2. There is no reasonable possibility that the additional evidence received since June 1975, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. CONCLUSIONS OF LAW 1. The evidence presented since the June 1975 decision is not new and material, and the veteran's claim has not been reopened. 38 U.S.C.A. § § 1110, 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1993). 2. The June 1975 decision which denied service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § § 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is satisfied that all relevant facts have been properly developed to the extent indicated. Regarding the request that the case be remanded for the purpose of obtaining records of psychological testing during service, the Board notes that in May 1975 the RO wrote to the United States Army General Hospital in Heidelberg, Germany, and requested copies of the records pertaining to treatment and psychological testing which was given to the veteran at that facility. A VA reference slip dated in June 1975, however, shows that the hospital reported that no additional records were available. Thus, a remand would serve no useful purpose, as there is no reason to believe that additional relevant evidence is available. Therefore, no further assistance to the veteran with the development of evidence to reopen the claim is required. Under the applicable law and regulations, service connection may be granted for disability which was incurred in or aggravated by wartime service. See 38 U.S.C.A. § 1110 (West 1991). However, in this case, the veteran's claim for service connection for an acquired psychiatric disorder was previously denied by the RO in a decision of June 1975. The veteran did not appeal that decision. When a decision is not appealed, it becomes final. See 38 U.S.C.A. § 7105 (West 1991). A claim which was previously denied may be reopened through the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 1991). In pertinent part, in order to be material, there must be a reasonable possibility that the additional evidence, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156 (1993). The evidence which was of record in June 1975 included the veteran's service medical records. A report of medical history given by the veteran in February 1972 for the purpose of enlistment shows that he denied having a history of having nervous trouble of any sort. A report of a medical examination conducted at that time shows that psychiatric evaluation was normal. Service medical records dated July 4, 1972, however, show that the veteran was seen at a service clinic after having reportedly made a suicide attempt. It was noted that he was markedly passive-dependent. He gave a history of having had problems as an adolescent in school and at home. Physical examination revealed cuts on the right forearm. The initial impressions were (1) low IQ and (2) suicide gesture. Service medical records dated from July 5 to July 7, 1972, show that the veteran was seen at a service mental hygiene clinic and was admitted to a service hospital. He reportedly gave a history of having numerous psycho-social problems relating primarily to his family, learning difficulties and peers. He reportedly had always had a tremendously poor self image and had self defeating behavior with friends. He felt that he had been a failure in the army and he wanted to get out. The suicidal gesture was described as a call for help. In the discharge summary from the July 1972 hospitalization, it was noted that the veteran had been treated at age 13 for nervousness with some pills, but that they were discontinued due to insomnia and weight loss. It was also noted that in February 1972, prior to service, the veteran cut his wrists slightly after having an argument with his parents. Examination during the July 1972 hospitalization reportedly revealed that the veteran was cooperative, alert, and did not seem depressed. He had very superficial linear cuts and the volar right wrist. His frontal scalp hair was very this due to his habit of pulling at his hair. Mentation was dull, and memory was somewhat poor. During the hospital course, the veteran exhibited no depression. The final diagnoses included mild mental retardation and suicidal gesture. A service medical record entry dated in October 1972 shows that the veteran was seen for insomnia which was related to family problems. Medication was prescribed. Two days later, the veteran was seen again after having inflicted superficial lacerations on his right wrist. A history of family problems was again noted. An entry dated in November 1972 shows that the veteran was seen for migraine headaches. Valium was prescribed. In February 1973, the veteran reported a complaint of having a "nerve problem". The assessment was "no disease". In April 1973, the veteran underwent psychological testing. The results are not available. In a report of medical history given by the veteran in May 1973, he denied having had depression, excessive worry or nervous trouble of any sort. A report of a medical examination conducted in June 1973 shows that psychiatric evaluation was normal. Similarly, a report of a mental status examination conducted in June 1973 shows that the veteran's behavior was normal, he was fully alert and oriented, his mood was level, his thought process was clear, and his thought content was normal. The examiner's impression was that he veteran had no significant mental illness. Also of record at the time of the June 1975 decision by the RO were several post-service medical records. A VA hospital discharge summary dated in July 1974 shows that the veteran was hospitalized for 18 days. The diagnoses were (1) drug dependence, sedatives like Placidyl, Quaalude, and Tuinal since September 1972; (2) drug abuse, heroin, November 1972 to February 1974; (3) chronic anxiety neurosis since 1968; (4) acute anxiety with trichotillomania off and on since 1968; and (5) mental retardation since birth, borderline. A report of a screening interview dated in August 1974 which was conducted at a private mental health clinic shows that following examination, the diagnosis was non-psychotic brain syndrome. A report of a special neuropsychiatric examination conducted by the VA in September 1974 shows that mental status examination revealed that the veteran was in good contact with reality, and that there were no signs of a psychosis. Following examination, the diagnosis was schizophrenic reaction, type undifferentiated, in fair partial remission. Finally, the evidence which was of record in June 1975 included a written opinion by a VA neuropsychiatrist dated in June 1975 which shows that he reviewed the veteran's claims folder for the purpose of reconciling the various diagnoses which had been rendered previously. He concluded that the correct diagnoses were (1) drug dependence; (2) anxiety neurosis; (3) mental retardation; and (4) immature personality. He also concluded that there were insufficient findings to render a diagnoses of either undifferentiated type schizophrenia or non psychotic organic brain syndrome. Based on this evidence, the RO held in its decision of June 1975 that service connection for an acquired psychiatric disorder was not warranted. In the decision, the RO explained that service connection was not warranted for an anxiety neurosis as the disorder was first noted on the hospital report of July 1974. The RO also explained that service connection was not warranted for mental retardation or a personality disorder as those were constitutional or developmental abnormalities which were not considered to be disabilities under the law. The RO also noted that heroin and other drug dependency was not considered to be a disability for VA compensation purposes because such disorder was considered to be due to willful misconduct. The Board finds that the decision by the RO in June 1975 does not contain clear and unmistakable error. The decision was in accordance with the applicable law and regulations and the relevant evidence which was considered. Neither the asserted failure to evaluated and interpret correctly the evidence nor failure to obtain additional evidence may form a basis for a claim of clear and unmistakable error. See Damrel v. Brown, 6 Vet.App. 242, 245-246 (1994), and Caffrey v. Brown, 6 Vet.App. 377, 385-387 (1994) Further, after considering all of the evidence of record, both old and new, the Board finds that evidence sufficient to change the outcome of the prior RO denial has not been presented. The additional evidence which has been presented includes testimony given by the veteran in a hearing held in September 1990, and a letter and testimony from the veteran's mother. During the hearing the veteran stated that he did not have psychiatric problems until he was mugged during service. He said that he subsequently had problems such as hearing voices and that those problems led to his discharge. The veteran's mother testified that the veteran did not have problems prior to service, but that he developed difficulties during service. Her letter contains similar information. The Board notes, however, that the testimony and the letter have little probative value with regard to a claim for service connection for an acquired psychiatric disorder. A psychiatric diagnosis must be rendered by qualified medical personnel. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Neither the veteran nor his mother have such qualifications. Therefore, there is no reasonable possibility that this evidence would change the outcome of the prior decision. The additional evidence also includes school records from before the veteran entered service show that the veteran's grades consisted of C's, D's and F's. The records also show that the veteran dropped out of school to join the Army. However, the records do not include any information which supports the claim for service connection for an acquired psychiatric disorder. The additional evidence also includes post service VA medical treatment records. For example, a VA hospital discharge summary dated in October 1975 shows that the veteran was treated for epigastric pain. The diagnoses included (1) chronic barbiturate addiction, (2) possible anxiety reaction, and (3) possible low mentality. However, the summary is from several years after the veteran's separation from service and does not contain any medical opinion linking any of those disorders to service. Therefore, the record is not relevant to the claim for service connection for an acquired psychiatric disorder. Similarly, medical treatment records dated in June and July 1979 show that the veteran was diagnosed as having (1) depression, (2) personality disorder, (3) polysubstance abuse, by history, and (4) borderline mental retardation. More recent VA medical records contain similar information. Again, however, the records do not demonstrate that any of the veteran's problems were related to service. A similar analysis applies to post service records from private health care providers. For example, a medical record dated in July 1989 from the St. Elizabeth Medical Center shows that the veteran was hospitalized after being found at a truck stop heavily intoxicated trying to cut his right wrist. The initial diagnoses were psychosis of undetermined etiology with suicide attempt, chemical dependency, and personality disorder. The final diagnoses were (1) acute alcohol intoxication, (2) chemical dependency, and (3) personality disorder, not otherwise specified. The record is not relevant to a claim for service connection because it does not show that any of the disorders were related to the veteran's period of service. A report of a disability evaluation examination conducted by the VA in October 1989 which shows that the veteran stated that almost every detail of his daily life bothered him. He gave a history of having had a nervous condition since being in the service. Following mental status examination, the diagnosis was schizophrenia, chronic undifferentiated type. Significantly, however, the examiner did not state that the disorder found on the examination was related to the veteran's period of service over 15 years earlier. Therefore, the examination report does not support the veteran's claim for service connection for an acquired psychiatric disorder. A letter from R. Malench, M.D., dated in December 1990, shows that the veteran had been under his care for the past 28 years, primarily for drug and alcohol abuse. The letter also shows that, according to their records, the veteran had been treated at the Jefferson Barracks hospital in July 1974. We note, however, that at the time of the June 1975 decision the evidence included the hospital discharge summary from the July 1974 hospitalization. Therefore, the letter from Dr. Malench does not contain any new information. Finally, the additional evidence includes a report dated in December 1994 from an independent medical expert. The report was prepared based on an extensive review of the veteran's claims file. The Board finds that the conclusions reached by the independent medical expert do not support the veteran's claim. The expert made the following comments: There was clear evidence of a long history of illicit substance use, most likely since the patient was in his mid-teens. Substances included alcohol, barbiturates, Quaaludes, cocaine, heroin, acid, amphetamines, and MDA. The patient has a positive family history of alcohol abuse. The majority of [the veteran's] multiple hospitalizations documented were for detox or were otherwise substance-related. The patient's specific report of substance use would fluctuate, but there are multiple admissions of use present in the chart. Substance use as well as subsequent withdrawal can produce a variety of psychiatric symptoms including those associated with anxiety and depression and mania. These symptoms include poor sleep, appetite disturbance, anxiety, restlessness, dysphoria, paranoia, and grandiosity. The available evidence indicates that [the veteran's] substance use predated his complaints of anxiety and depression. The patient's multiple episodes of wrist-slashing were not suicide attempts as seen in a person with Major Depression, but rather self mutilation often done while the patient was intoxicated. However, I believe Depressive Disorder NOS and Anxiety Disorder NOS are most appropriate to account for his complaint of intermittent dysphoria, and anxiety given that there is not adequate evidence of the patient's symptoms when he was not abusing drugs. The patient's last treating physician felt that the patient's substance use was in remission. However, there was no objective evidence of this (i.e. urine drug screens) provided and the patient's subjective reporting was unreliable in the chart. There is clear evidence of a personality disorder in this patient. He meets criteria for borderline personality disorder although he has other mixed traits as well. This means that [the veteran] shows a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity which had begun by early adulthood. The chart documented an unstable self-image with low self-esteem fluctuating with grandiosity and entitlement. Impulsive behaviors including substance use were present. The patient demonstrated recurrent self- mutilating behavior. His repeated hospitalizations gave evidence of affective instability with the patient demonstrating anxiety, frustration, and depression alternating with calm, cooperative behavior. He described difficulties with anger and also transient paranoid ideation and dissociative symptoms (feelings of unreality, detachment, and depersonalization). Other symptoms which may be attributable to personality disorder traits include torture of animals, fire- setting, legal difficulties, and passivity/dependence. The patient's record contains a school transcript with grades mostly Ds and Fs. There is an IQ score of 65 mentioned although no copy of the testing was present. There was also a separate Bender- Gestalt Test cited which indicated the possibility of mild mental retardation. This in combination with the patient's intermittent reports of difficulties in school (academically and personally) justify the diagnosis of mild mental retardation. I find inadequate evidence in the chart to support the diagnoses of schizophrenia or bipolar affective disorder/schizoaffective disorder. The patient's complaints of auditory hallucinations fluctuated and at one point the patient reported that it was dependent on drug use. His descriptions of hallucinations were vague and more consistent with those described by others with personality disorders. I believe the emotional lability which evidently led others to the diagnosis of bipolar affective disorder is also more consistent with borderline personality disorder. The patient had an episode of seizure-like activity which was called a conversion disorder. Because the patient was able to stop this movement upon suggestion and had no physical findings related to a seizure, I believe this was more likely an episode of malingering secondary to the patient's personality disorder. The patient has had an abnormal MRI of unknown clinical significance. It was recommended that the patient be followed and a follow up study done if indicated. There is no documentation as to whether this was done. The consulting neurologist at the time thought the findings unrelated to the patient's immediate complaints and recommended treating his psychiatric illness as indicated. In response to the second question, as stated previously, the patient's substance use seems to have begun prior to his admission to the Army. While stressors may have escalated its use, it certainly can't be said that his time in service was the sole cause of his substance abuse. There is an implication that the patient was "self-medicating" his symptoms with substances. This is a difficult judgment to make given that there is no good documentation available as to the patient's presentation when not abusing substances. Mental retardation is cognitive impairment present before age 18. As noted, the patient's deficits were present when he was in school. They are unrelated to his time in the Army although his impairment may have made his adjustment to a new setting more difficult. It is important to note that the combination of polysubstance abuse, personality disorder, and mental retardation would lead to much subjective distress. I think that it is most likely this constellation which produces the patient's complaints of anxiety and depression. Those symptoms may have worsened with the stress of service in the Army. However, the symptoms that he experienced after his discharge were likely related to whatever current stressors were active in his life at any given time. Personality disorders arise out of very early conflicts which result in the development of patterns of inner experience and behavior which deviate markedly from the expected, and result in significant distress and impairment in functioning. Documentation is present indicating the presence of these difficulties prior to the patient's entering the Army. He described having always had poor self-esteem and self-defeating behavior. Again, patients with personality disorders tend to report worsening symptoms with the onset of stressors. However, the patient's time in the service was not the cause of his underlying personality disorder. In summary, the independent medical expert found that the veteran had a variety of psychiatric diagnoses which were unrelated to service. The report of the independent medical expert does not support the veteran's claim. Because the additional evidence does not support the contention that the veteran has an acquired psychiatric disorder which was incurred in service, there is no reasonable possibility that the additional evidence received since June 1975, when viewed in the context of all of the evidence, both old and new, would change the outcome of the prior decision. Thus, the evidence presented since the June 1975 decision is not new and material, and the veteran's claim may not be reopened. Accordingly, the June 1975 decision which denied service connection for an acquired psychiatric disorder is final and the appeal is denied. ORDER New and material evidence not having been presented to reopen a claim for service connection for an acquired psychiatric disorder, the benefit sought on appeal is denied. CHARLES E. HOGEBOOM 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.