Citation Nr: 0003715 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 92-05 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sterility as the result of exposure to ionizing radiation. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an organic seizure disorder. 3. Entitlement to an increased evaluation for a personality change due to general medical condition of closed head injury, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from May 1956 to May 1958. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions in February 1991, July 1994, and March 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that, in a final decision of October 1986, the Board denied entitlement to service connection for sterility as the result of exposure to ionizing radiation. In 1997 and thereafter, the veteran submitted additional evidence in an attempt to reopen the claim; the RO found that the additional evidence was not new and material, and the current appeal on that issue ensued. The Board also notes that a rating decision in December 1989 by the RO in Waco, Texas, denied entitlement to service connection for a seizure disorder; the veteran was duly notified of the decision; he did not file a timely substantive appeal, and the decision became final. In 1992 and thereafter, he submitted additional evidence in an attempt to reopen the claim; the RO found that the additional evidence was not new and material, and the current appeal on that issue ensued. The issue of entitlement to an increased evaluation for a personality change due to general medical condition of closed head injury will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. A decision of the Board in October 1986 denied entitlement to service connection for sterility as the result of exposure to ionizing radiation. 2. The additional evidence submitted since October 1986 is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. An unappealed rating decision in December 1989 denied entitlement to service connection for a seizure disorder. 4. The additional evidence submitted since December 1989 is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. A decision of the Board in October 1986, denying entitlement to service connection for sterility as the result of exposure to ionizing radiation, is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. Additional evidence presented or secured since October 1986 is not new and material, and the claim of entitlement to service connection for sterility as the result of exposure to ionizing radiation is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. A decision by the agency of original jurisdiction in December 1989, denying entitlement to service connection for a seizure disorder, organic in nature, is final. 38 U.S.C.A. § 7105 (West 1991). 4. Additional evidence presented or secured since December 1989 is not new and material, and the claim of entitlement to service connection for an organic seizure disorder is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Sterility Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1131. The law provides that, except as provided in Section 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. "New and material evidence" means evidence not previously submitted to VA decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant of prior evidence 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). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. See Elkins v. West, 12 Vet. App. 209, 214-5 (1999); Winters v. West, 12 Vet. App. 203, 206-7 (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, then, immediately upon reopening the veteran's claim, VA must determine whether the claim is well grounded under 38 U.S.C.A. § 5107(a). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated, after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. The sole basis of the Board's October 1986 denial of service connection for sterility as the result of exposure to ionizing radiation was that sterility is not recognized as a "radiogenic disease" by applicable regulations. 38 C.F.R. § 3.311(b) (1986). The evidence of record in October 1986 included a VA genitourinary evaluation of the veteran in May 1980, which showed marked atrophy of the testicles and the absence of a sperm count. The evidence at that time also included a report by the Department of Defense in July 1980 that a search of dosimetry records revealed that, during service in 1957 in a test involving the atmospheric detonation of a nuclear device, the veteran received a total of .002 rem gamma, which was noted to compare with .700 rem from a clinical chest X-ray at that time. The additional evidence concerning sterility added to the record since October 1986 includes the veteran's testimony at a personal hearing in October 1997, at which he asserted that exposure to radiation in service in 1957 rendered him sterile. That testimony is not "new" because it essentially reiterates the evidentiary assertion which the veteran made prior to the Board's October 1986 decision. The additional evidence also includes a statement by the veteran in June 1999 that a videotape of a television program produced in Sweden in 1982 contained a statement that radiation may cause sterility. That statement is new but it is not "material," because it does not show that sterility is a radiogenic disease, under VA regulations, and it does not constitute competent scientific or medical evidence that sterility is a radiogenic disease. See 38 C.F.R. § 3.311(b)(2), (4) (1999). Therefore, as new and material evidence has not been submitted, the claim of entitlement to service connection for sterility as a result of exposure to ionizing radiation is not reopened. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). II. Service Connection for an organic Seizure Disorder The basis of the RO's denial in December 1989 of the veteran's claim for service connection for a seizure disorder was that there had been no diagnosis of a seizure disorder during the veteran's period of active service or within one year of his separation from service. (An organic disease of the nervous system may be presumed to have been incurred in service when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.) The evidence of record in December 1989 included service medical records and postservice VA and private medical records. The service medical records showed that, in November 1957, the veteran was admitted to a service department hospital for evaluation of generalized tremors, dizziness, and vertigo. It was noted that in February 1957, he had been knocked unconscious for a few minutes in a motor vehicle accident, but he denied any central nervous system sequelae. Diagnostic testing revealed no evidence of an ictal disorder. The final diagnosis was anxiety reaction. In February 1966, the veteran was seen by a private physician; after an argument with his wife, he was unable to speak. He had a history of hysterical seizures. The diagnosis was hysterical aphasia, chronic anxiety. VA electroencephalograms in June 1976 and May 1980 were normal. A VA CT scan of the head in April 1989 was normal. The evidence added to the record since December 1989 concerning the veteran's claimed seizure disorder includes: VA inpatient and outpatient treatment records; the veteran's testimony at a hearing in October 1997; and lay statements. The VA treatment records, dated from 1993, reflect diagnoses of history of a seizure disorder and pseudoseizures. Those records are new but are not material, because they do not relate a current seizure disorder to the veteran's period of service or to the one-year presumptive period following service. The veteran testified at a hearing in October 1997 that he believed that he had a seizure disorder since being injured in a motor vehicle accident in service in 1957. The veteran's testimony is not new, as it is cumulative of statements which he made prior to the denial of his claim in December 1989. Finally, the additional evidence includes statements by the veteran's brothers, a minister, and a friend, which are all to the effect that they observed the veteran having "seizures" when he came home from service and thereafter. The lay statements are new but are not material, because they lack probative value. Lay persons are not qualified to offer opinions on a question of medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The lay statements thus do not provide competent evidence of a diagnosis of a seizure disorder during the veteran's period of service or the year following service. In sum, the additional evidence is not new and material, and the veteran's claim for service connection for an organic seizure disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105; 38 U.S.C.A. § 3.156(a). ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for sterility as the result of exposure to ionizing radiation, the appeal on that issue is denied. New and material evidence not having been submitted to reopen a claim of entitlement to service connection for an organic seizure disorder, the appeal on that issue is denied. REMAND The veteran's service medical records reveal that, during hospitalization, a diagnosis of "anxiety reaction" was rendered. A rating decision in June 1977 granted service connection for "anxiety neurosis" and assigned a 10 percent evaluation. At a VA psychiatric examination in January 1988, the diagnosis was chronic anxiety neurosis with a marked tendency to somatize. A rating decision in February 1988 increased the evaluation to 30 percent. At a VA psychiatric examination in September 1993, the provisional Axis I diagnosis was conversion disorder. The examiner found that, although the veteran gave a history of panic attacks in the past, there was no evidence of a current panic disorder. The examiner assigned a Global Assessment of Functioning (GAF) score of 60, which denotes moderate symptoms or moderate difficulty in social, occupational, or school functioning. The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., 1994). In October 1993, the veteran was admitted to a VA medical center. His wife indicated that he recently was in his own world, mumbling to himself and saying that he wanted to slit his throat. When the veteran saw that a staff member had misspelled his name, he started screaming. After that, however, he was in bed and would not answer questions. Later, he agreed to be interviewed and he said that he had been angry for most of his life; his moods were up and down every day. He stated that society treated him poorly because he had been exposed to atomic bomb fallout. He said that he had a difficult time holding a job due to "seizures." On mental status examination, the veteran was lying in bed, with his right eye twitching and with repeated mouth movements. His affect was blunted and his mood was depressed and angry. During hospitalization, he blamed society for his problems. Physicians found him to have a characterological illness. The longer he was in the hospital, the more borderline traits emerged, including unstable affect with frequent shifts from depression to irritability, inappropriate intense anger, recurrent suicidal thoughts, and a pattern of unstable interpersonal relationships, as well as talk about how he was unable to perform his job. The veteran engaged in a confrontation with a doctor and, later, refused to talk with two doctors who approached him. He was discharged to be seen at a private mental health clinic for anger management. Diagnoses included conversion/somatoform disorder and borderline personality disorder. At a VA epilepsy-narcolepsy examination in April 1998, the examiner stated that he had been asked to comment on whether the veteran had an organic seizure disorder and whether diagnosed seizures were part of an anxiety disorder or a separate phenomenon. The veteran indicated that he had been having staring or "blanking out" spells during which he was unresponsive to his surroundings. After review of the veteran's medical record and a physical examination, the examiner rendered the following assessments: documented nonepileptic motor seizures; functional right hemiparesis; and prior diagnosis of borderline personality disorder and somatoform complaints. The examiner stated that if was likely that the veteran's staring spells were functional. The examiner did not say whether the veteran's "spells" were due to an organic mental disorder or to an organic personality disorder. At a VA mental disorders examination in April 1998, the examiner found that the veteran did not meet the DSM-IV criteria for major depression, panic disorder, generalized anxiety disorder, dysthymia, or post-traumatic stress disorder. The Axis I diagnosis was personality change due to general medical condition (closed head injury in 1957 motor vehicle accident). The examiner noted that the veteran's personality change had led to difficulties in relating to others, as well as to a constriction of his habits and ability to work full time. Based on the report of the VA mental disorders examination in April 1998, a hearing officer's decision in July 1998 reclassified the veteran's service-connected psychiatric disorder as "personality change due to general medical condition closed head injury (formerly diagnosed anxiety neurosis) and evaluated the disability as under 38 C.F.R. § 4.130, Diagnostic Code 9327, which pertains to an "organic mental disorder, other (including personality change due to a general medical condition)". The hearing officer did not rate the veteran's service connected psychiatric disorder under 38 C.F.R. § 4.124a, Diagnostic Code 8045, pertaining to brain disease due to trauma, or 38 C.F.R. § 4.130, Diagnostic Code 9304, pertaining to dementia due to head trauma. The Board finds that clarification is needed, as the veteran had been granted service connection for a non-organic psychiatric disorder, and he now appears to have been granted service connection for an organic mental condition. It also appears to the Board that the symptomatology which may be attributable to the latter may be different from or at least more encompassing than that attributable to the anxiety neurosis. Applicable regulations provide that, if the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. 38 C.F.R. § 4.125(b) (1999). As it is not clear whether the diagnosis rendered by the mental disorders examiner in April 1998 represented a progression of anxiety neurosis (the prior diagnosis for which service connection had been granted earlier), or the development of a new and separate condition, or correction of an error in the prior diagnosis, the report of the examiner should have been returned to him for clarification. The Board further observes that in April 1998 the veteran was examined at a VA facility, apparently at the request of the RO, for the purpose of having certain questions answered, to include whether seizures are part of the anxiety disorder or a separate phenomenon? The veteran appears to have been examined by a neurologist and a psychiatrist. The claims folder was not made available to the psychiatrist and he appears to have drawn conclusions based on the history as related to him by the veteran and/or his wife. For example, the service medical records reflect that the veteran had been seen in November 1957, when he reported that he had been knocked unconscious for a few minutes in an automobile accident the previous February. He denied any sequela referable to the central nervous system. He also reported, based on the same service medical record, that he had been in an automobile accident several years earlier without loss of consciousness. However, on the VA 1998 examinations both physicians reported the veteran's history of loss of consciousness or being in a coma for weeks, or from 60 to 90 days. The veteran also gave a history to the examiners implying that he had seizures and a personality change ever since, including in service. After reviewing the opinions offered by each physician, the Board is not entirely certain that they answered each of the questions posed to them. Under the circumstances, this case is REMANDED to the RO for the following: The claims folder must be returned to the psychiatrist and the neurologist who examined the veteran in April 1998, if they are available, and provided that each of them is a board-certified specialist. If one or both of the April 1998 examiners is no longer available or is not board- certified, the claims folder must be referred to another board-certified neurological and/or psychiatric specialist for review and opinion. It is imperative that each examiner review the veteran's medical records in the claims file and a copy of this REMAND. The examiners should note that the veteran does not have an organic seizure disorder, based on the neurologist's opinion in April 1998. The neurological and psychiatric examiners should confer and offer a joint opinion on the following questions: what is the correct diagnosis (es) of all psychiatric impairment present? If they agree that the veteran has an organic personality disorder as found in April 1998, does this represent a progression of the earlier diagnosed anxiety neurosis, a correction of the earlier diagnosed anxiety neurosis or development of a new and separate medical condition? A detailed rationale for all opinions, including the etiology of any mental disorder currently found and its relation to service, should be provided. Following completion of these actions, the RO should review the evidence and determine whether the veteran's increased rating claim may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain clarifying medical information. By this REMAND the Board intimates no opinion as to the ultimate disposition of the appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he receives further notice. BRUCE KANNEE Member, Board of Veterans' Appeals