BVA9501648 DOCKET NO. 93-06 686 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for spinocerebellar degeneration. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from January 1969 to June 1970. At the outset, the Board of Veterans' Appeals (Board) notes that an historical review of the record shows that an initial Department of Veterans Affairs (VA) Regional Office (RO) rating determination in July 1970 established service connection for a schizophrenic reaction and grand mal epilepsy. In accordance with regulatory procedures under 38 C.F.R. § 3.105(d), an RO rating determination in June 1973 found no aggravation in service of the preservice schizophrenic reaction, also shown as psychosis with degenerative disease of the central nervous system, and spinocerebellar degeneration and seizures; therefore, service connection was severed and denied based upon a finding of clear and unmistakable error in the RO's rating determination of July 1970. The veteran was notified of the decision but did not file a timely appeal therefrom. The RO's severance/denial of service connection for schizophrenia (psychosis) and epilepsy included the spinocerebellar claim because both involved the same condition, and, since the appellant did not appeal, the decision became final with respect to the appellant's claim for benefits due to a neurologic disorder. See McGraw v. Brown, No. 93-27 U.S. Vet. App. (November 15, 1994). While the RO has also referred to an unappealed rating determination dated in December 1987, with respect to denying service connection for cerebellar degeneration, the Board points out that the issue must be considered in light of the United States Court of Veterans Appeals decision in Glynn v. Brown, 6 Vet.App. 523 (1994) stating that the plain meaning of 38 U.S.C.A. § 5108 can only be given its full force and effect if the Secretary of the VA and the Court are required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Consequently, our review of the record shows that the unappealed RO rating determination in June 1973 last denied service connection on the merits. At the hearing at the RO in November 1992, the veteran noted that his claim of service connection for spinocerebellar degeneration no longer included entitlement under the provisions of 38 U.S.C.A. § 1151 (West 1991). There is currently a department- wide stay on the adjudication of claims under 38 U.S.C.A. § 1151. Therefore, the issue will not be considered by the Board. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended by the veteran that his preexisting spinocerebellar degeneration with outward manifestations of psychosis and seizures was aggravated during active duty and that the numerous VA clinical data submitted subsequent to the RO's unappealed rating determination of June 1973 constitutes new and material evidence sufficient to reopen his claim of service connection for a neurologic disorder. 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 has not been submitted to reopen the claim of service connection for spinocerebellar degeneration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. An unappealed RO rating determination dated in June 1973 severed/denied service connection for spinocerebellar degeneration because there was no objectively demonstrated advancement in the preservice pathology shown during active duty. 3. The evidence received since the June 1973 final denial action consists of mostly VA clinical data and some private medical evidence dating between approximately late 1972 and mid-1991, and a hearing transcript dated in November 1992. 4. The added evidence is either cumulative and repetitious of facts considered by the RO in June 1973 or merely reflects continuation of clinical findings suggestive of spinocerebellar disease outwardly manifested by psychosis and seizures over the post service years, but without evidence demonstrating aggravation during service and, therefore, the additional evidence cannot possibly change the outcome of the veteran's claim. CONCLUSION OF LAW The decision of the RO in June 1973 denied service connection for spinocerebellar degeneration is final and there is no new and material evidence to reopen the claim. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.104 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist Significantly, we have found that the veteran's claim is "well grounded" within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The extensive preservice private medical records, as well as the veteran's service medical records, numerous post service clinical data, mostly consisting of reports of VA outpatient and hospital summary records with reports of examinations and some private clinical data dating between approximately late 1972 and mid-1991 together with a transcript of testimony given by the veteran before a hearing officer at the RO in November 1992 have been included in the veteran's claims file. Such evidence provides a sufficient basis to address the merits of the veteran's claim. There is no indication that there are additional pertinent available records which the RO has not attempted to obtain. Accordingly, no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). II. Pertinent Law and Regulations Service connection may be established for a disability resulting from personal injury suffered or a disease contracted in line of duty, or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991). Congenital or developmental defects as such are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c) (1993); OGC Opinion No. 82-90 (July 18, 1990) (regarding service connection for a disease (but not defects) of a congenital, developmental or familial origin). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1993). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1993). A notice of disagreement shall be filed within one year from the date of mailing of the notification of the initial review and determination; otherwise, that determination becomes final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1993). If new and material evidence is presented or secured with respect to a claim, which has been disallowed, the claim will be reopened and the former disposition of the claim reviewed. 38 U.S.C.A. § 5108 (West 1991). Evidence is considered new when it is not merely cumulative of other evidence in the record and is considered material when it is relevant and probative of the issue at hand. To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence is "new" when it is not cumulative of evidence already of record, and is not "material" when it could not possibly change the outcome of the case. Godwin v. Derwinski, 1 Vet.App. 419 (1991). Importantly, we note that reopening or readjudication of a finally denied claim by the RO or by the DVA in the absence of new and material evidence must be considered "in excess of statutory jurisdiction, authority, and limitations, and will be held unlawful and set aside." McGinnis v. Brown, 4 Vet.App. 239, 243-45 (1993). III. Spinocerebellar Degeneration The veteran's claim for service connection for a degenerative disease of the nervous system, shown as spinocerebellar degeneration (cerebellar degeneration), is shown to have been included in the earlier denial of service connection for schizophrenia and epilepsies by the RO in June 1973, since they both represented the same condition. Since the appellant did not appeal, the decision became final. The veteran presently maintains that his preexisting neurologic degenerative process, as outwardly manifested by psychosis and seizures, underwent an increase in severity during active duty. He argues that, although he was hospitalized prior to service for treatment of seizures and psychosis, he was free of symptoms for years leading up to service and even until approximately one year following entry into active service. He then developed a recurrence of persistent seizure activity and psychotic symptoms. He maintains that the VA clinical data and private medical evidence added to the record since the rating determination in June 1973, together with sworn testimony at a recent hearing at the RO and arguments raised on appeal, constitute new and material evidence sufficient to reopen his claim. An historical review of the evidence on file at the time of the RO rating determination in June 1973 shows that the record contained private medical evidence referring to treatment and hospitalizations between approximately October 1959 and September 1965 for severe psychotic symptoms associated with schizophrenia with evidence of organic brain syndrome, and seizure disorder (epilepsy), grand mal type. In a statement to an Army recruiter dated in January 1969, Mehadin K. Arafeh, M.D., Superintendent, Connecticut Valley Hospital, referred to the veteran's prior psychiatric treatment and recommended that the veteran be placed on limited stress duty. A report of a service entrance examination dated January 1969 revealed normal neurologic and psychiatric evaluations. However, a past history of defects and diagnoses revealed a history of emotional problems and seizures, although the veteran was described as "okay" at the time of the examination. The veteran indicated that he had been rejected for the military because he failed a mental test in 1966. He had had neuropsychiatric hospitalization at age 13 or 14 although no problems since that time was mentioned. Specifically, it was noted on a report of medical history that the veteran denied having had or having at the time of the examination neuropsychiatric symptoms or epilepsy. A neuropsychiatric consult was requested. A followup neuropsychiatric consultation dated in January 1969 for purposes of enlistment on to active duty, revealed that the veteran had never married. He was employed at a construction company. He had been denied entry into the United States Army earlier and had a history of hospitalization from 1959 through 1963 with extended visits and then discharged in 1965. He had been working for the past four months. It was also noted that his past psychiatric hospitalization was for a serious emotional illness. He had worked regularly since 1963 and was doing well at the time of the examination. It was noted that the veteran had a good affect and was coherent. He was intent on joining the United States Army. The diagnosis was a normal individual. He was placed in a moderately stressful assignment. On August 5, 1969, the veteran was seen at a dispensary for a possible epileptic seizure. He was found outside of a club in an apparent seizure with foaming at the mouth. There was a history of epilepsy in the past noted. The veteran stated that he had been on Dilantin before service, but had not taken any since entering service. He had not eaten during the day. An odor of alcohol on his breath was noted. He stated that he had had 4 or 5 beers during the evening. On August 6, 1969, the veteran was seen with a history of grand mal seizures since 1959 when he was admitted to a hospital for evaluation for a nervous breakdown "insulin shock" following some procedure in the hospital which might have caused epilepsy. He was in the mental hospital for four years. He had done well since discharge from the hospital, especially when taking Dilantin. He had been on no medications for the preceding five months. This was his first seizure. The impression was grand mal epilepsy. The examiner indicated that he did not believe that the veteran's seizure rate warranted Dilantin treatment, particularly since the veteran had had seizures while taking the medication previously, but, if the frequency increased, medication would be instituted. A neurologic warning tag was issued. In October 1969, the veteran reported a history of psychosis and seizures since childhood with hospital admissions and discharges in service between October 13, 1969, and October 27, 1969, essentially for epilepsy (idiopathic) with grand mal seizures, considered to have existed prior to service. He was given duty with limitations and a permanent profile. As of approximately October 27, 1969, it was noted that he had had six seizures since August 5, 1969, and appeared to be incapable of performing any duties. The veteran was hospitalized on October 28, 1969. He was characterized as an individual who had been in the Army for nine months and in Germany for three months. His scheduled separation day was in January 1971. Presenting symptoms, for admission, were poorly controlled grand mal epilepsy and chronic psychosis. It was noted that the veteran, out of reluctance, did not give an entirely clear history. It appeared that he was hospitalized at about the age of 15 for acute paranoid schizophrenia and continued to be on either hospital or outpatient therapy for a total of five years. Early, during such period, he was apparently treated with Insulin coma therapy after which he developed grand mal epilepsy. The veteran was employed and maintained himself in the community, when he decided, contrary to his doctors advice, to enlist in the service and was accepted under a special project. Since his arrival in Europe, the veteran had had recurrent grand mal seizures, particularly at times when he had been drinking. He revealed to the examiner that, because of a "pact" he had made sometime earlier, the nature of which he would not reveal, he had not taken medications for the treatment of his seizure disorder. Furthermore, the veteran felt that drinking alcohol was a right and a pleasure which he was unwilling relinquish. He had performed efficiently and was well liked at his unit. However, when confronted with the danger to himself as well as the possibility of discharge from the service, if he continued to abstain from medication and indulge in alcohol, he steadfastly refused to do either. It was recorded as history that the veteran did not know his parents and was raised in Connecticut by guardians. He completed the eighth grade and was subsequently hospitalized as noted above. He had had no civilian police record and had no "Article 15's" or court- martials in the service. On a mental status evaluation, the veteran was described as friendly and cooperative, and of borderline intelligence. There was a moderate tendency toward evasiveness and secrecy, particularly surrounding the nature of the "pact" on the basis of which he had refused to take medication for his seizure disorder. He apparently suffered from depression on one occasion and had mentioned to one of the psychiatrists that he heard voices that were not of a compelling nature. He has since denied such a statement. A review of the systems and physical examination were within normal limits. Neurological consultation led to a diagnosis of grand mal epilepsy and borderline intelligence. Also noted was schizophrenic reaction, residual type, manifested by episodes of irritability and distrustfulness, and evasiveness and secrecy regarding a pact not to take medications to control his grand mal epilepsy, with possible auditory hallucinations. There was also an indication in the record that the veteran was an intellectually deficient suspicious person with labile affect and childlike qualities. It was noted that he should not have been allowed to enlist. On hospital admission in late November 1969, it was noted as history that the veteran was first hospitalized for a psychiatric illness in October 1959 at age 15 at Connecticut Valley Hospital where the diagnosis of schizophrenia was made. He developed grand mal seizures during a course of Insulin, in 1961. Subsequently, he was transferred to Norwich Hospital where he remained until September 1963. He remained as an outpatient until September 1965. While hospitalized, he adjusted well to the ward. No evidence of seizures was noted. During the course of hospitalization he was described as not overly psychotic although his affect was at times inappropriate. A report of an electroencephalogram in December 1969 revealed evidence of a convulsive disorder and possible brain damage. The veteran was described as a known epileptic for 10 years. He was on Dilantin and phenobarbital. Frequency was described as every 3 to 4 months. Type of movement was tonic/clonic. Duration was several minutes. Post seizure state included a period of unconsciousness. The report conclusion revealed findings of moderately abnormal electroencephalographic studies consistent with vocal dysfunction having the quality of damage of the right posterior parietal and occipital areas. Hospital summary report dating through late December 1969 revealed a preservice history of hospitalization for a total of five years. The veteran's IQ was found to be 77. He had a diagnosis of schizophrenic reaction and convulsive disorder. It was noted that he began having grand mal seizures during a course of Insulin shock therapy and had been on Dilantin and phenobarbital since that time. After being discharged from a State hospital in 1963, he had had a variety of different jobs, the longest one being for a year and a half at a firearms company. However, he was not satisfied in civilian life and enlisted in the Army in 1969. He had not been in psychiatric treatment in the interim. Once he arrived in Germany, he began doing a considerable amount of drinking and started having epileptic seizures for which he was hospitalized on three different occasions and was finally evacuated back to the United States because the doctors felt that he was able to control his drinking and that he had a chronic psychiatric problem in addition to his epilepsy. While hospitalized, psychological testing revealed no evidence of brain damage but did show evidence of anxiety and borderline IQ. The diagnoses were schizophrenic reaction, residual type, manifested by irritability, distrustfulness, evasiveness, and secrecy, auditory hallucinations, inappropriate affect and poor object relations, which existed prior to service. Epilepsy, which also existed prior to service, was noted. Borderline intelligence was also indicated which existed prior to service. He was considered unfit for further military duty and recommended for separation from active duty under appropriate regulations. A report of a physical examination dated in January 1970 for separation from active duty referred to preservice schizophrenia and epilepsy. A physical evaluation board proceeding report dated in February 1970 indicated that the veteran was discharged from the service due to schizophrenic reaction, residual type of slight social and industrial impairment and for grand mal epilepsy, controlled, with episodes averaging approximately one major seizure per month over the preceding year. Following separation from service, the veteran filed a claim for service connection for a psychiatric disorder and epilepsy in June 1970. An original rating determination by the RO in July 1970, reviewed the veteran's service medical records and found aggravation of the preexisting schizophrenic reaction and grand mal epilepsy. The record also contained VA progress notes dated in January 1971 which showed that the veteran was voluntarily admitted on January 25, 1971, for his first Northampton VA hospitalization. He was noted as service connected and had been in Newington VA Hospital prior to the admission where he apparently signed out against medical advice. At the time of the recording, no information from Newington, or any other hospital had been received. Auto- anamnesis revealed that the veteran had been an epileptic since the age of 14, that he had been receiving seizure medication and Valium, and that despite his epileptic history, he was in the Armed Forces for more than one year. He stated that he had not been using his entire epileptic medication from June 1970 to December 1970. It was noted as history that he had had grand mal seizures on January 21, and had three seizures on January 22. On January 22, after his last seizure, he submitted a three-day notice which he later withdrew. In the early morning hours on January 23, he again had 3 or 4 grand mal seizures lasting one minute each. On January 24, the seizures repeated in a more monotonous fashion and his last seizure was on January 25, 1971. It was noted that there were reasons to believe that he had been abusing drugs although he denied it. He had hardening of the antecubital veins and the possibility of withdrawal symptoms superimposed upon his epileptic seizures and/or a space-occupying lesion. The diagnosis was nonpsychotic organic brain syndrome with epilepsy. Upon transfer from the Newington VA facility on January 25, 1971, it was noted that the veteran had had multiple admissions to that facility. His last hospitalization because of seizure was about two weeks earlier when he signed himself out, following this he agreed to go to Northampton for long-term therapy. At Northampton, he had 40 to 50 seizures in 4 to 5 days and was sent back to Newington. He was seen at that facility with seizuring. Physical examination revealed no significant findings. While hospitalized between January 1971 and June 1971 by the VA, pertinent diagnoses included psychosis with epilepsy. A consultant in psychiatry was of the opinion that the veteran had schizophrenia with a history of seizures secondary to therapy rather than a psychosis with epilepsy as previously suggested. While hospitalized between June 1971 and May 1972, the veteran's psychiatric condition came under control although it was thought that his speech had become more slurred. He had an unsteady gait when he arrived at the hospital although it was attributed to a previous knee injury. During a period of hospitalization by the VA between May 1972 and July 1972 it was noted that the veteran was ataxic and had marked slurring of speech but appeared to remain in contact with the world and events. He was referred to the neurosurgical clinic to rule out a possible heredodegenerative nervous system disease. During a period of hospitalization by the VA between July 1972 and August 1972 it was noted that the veteran had had a neurologic workup because of ataxia to include the possibility of multiple sclerosis. It was initially thought that the veteran had a spinocerebellar degeneration. A neurologic workup while hospitalized revealed that the diagnosis of spinocerebellar degeneration or olivopontocerebellar degeneration was correct. A subsequent report of a psychiatric evaluation in September 1972 referred to earlier consultation notes that were considered, not actually much of a help for the veteran's mental picture that was puzzling and complicated. It was noted that, apparently, there were psychotic episodes of long duration in early adolescence, replete with hallucinations, delusions, hospitalization, convulsive therapy and convulsive seizures. Progressive evidence of degeneration of the cerebellum and allied structures was noted. Following a psychiatric evaluation, the examiner indicated that various psychiatric diagnoses have been proposed including his own of depressive neurosis all of which did not "quite fit." The examiner leaned to a progressive central nervous system degeneration, possibly familial. A followup dictated clinical note dated in October 1972 indicated that a letter from the Connecticut Welfare Department shed some light on this story in that it made it unlikely that a familial-type of central nervous degeneration was involved. It was noted that the finding that the convulsive disorder was iatrogenic and that factor could conceivably be operating in the degenerative process. Insulin shock therapy for psychosis and onset of convulsive disorder seemed to date at the same time. Furthermore, it was noted that there was an adolescent type of psychosis and possibly schizophrenic; however, the veteran's present picture was not one of schizophrenia, even a chronic type, in remission. Therefore, it was felt that the medical staff would have to settle for a presumptive diagnosis of psychosis with degenerative disease of the central nervous system; particularly, since the veteran was reluctant to permit further studies of the cerebellar spinal fluid dynamics. An RO rating determination of December 1972, proposed to sever service connection for schizophrenia and epilepsy based on clear and unmistakable error in the July 1970 rating action because the evidence of record failed to show any sudden increase in pathology or superimposed upon the preexisting psychosis and epilepsy, by injury or a disease. It was noted that the enlistment examination showed a history of emotional problems and a history of hospitalization in October 1959 for schizophrenia at age 15 with treatment of five years during at which time he was treated with Insulin coma therapy after which he developed grand mal epilepsy. After he was in the Army for nine months and in Germany for three months, he was admitted to the hospital for grand mal epilepsy, poorly controlled, and chronic psychosis. It was noted that prior to admission, he had been hospitalized three times in October 1969 for epilepsy. He admitted to drinking when he was under tension even when he knew it was detrimental to his medical condition. He revealed that he had made a pact, the nature of which he would not reveal, not to take his medications for treatment of seizures. Also, it was noted that he felt drinking alcohol was a right and a pleasure which he was unwilling to relinquish. It was noted that the evidence showed that he had seizures following drinking alcohol and when he failed to take his Dilantin. Overall, it was held that the record failed to show any sudden pathology superimposed upon the veteran's preservice psychosis and epilepsy by injury or disease during service. It was noted that the persistence of symptoms in service and expectant manifestations of such symptoms without accelerating disease or injury did not represent aggravation by his service. The disability preexisted service and was not aggravated by it. The veteran was notified of the proposed action. Moreover, an administrative determination by the Director of VA Compensation and Pension Services dated in March 1973 concurred with the rating board proposal to sever service connection based upon the fact that the grant of service connection for such disorders was clearly and unmistakably erroneous. An unappealed RO rating determination dated in June 1973 severed/denied service connection for a schizophrenic reaction, chronic, differentiated type, also shown as psychosis with degenerative disease of central nervous system, spinocerebellar degeneration with marked ataxia, and epilepsy. The evidence added since the June 1973 final denial action consists of extensive VA clinical data, including hospital summaries, outpatient treatment records, reports of examinations, and some private medical records dating between approximately late 1972 and mid-1991, appointment of a custodian in 1978, and a hearing transcript dated in November 1992. Such evidence is either cumulative and repetitious of facts previously considered by the RO in June 1973 or merely reflects continuation of spinocerebellar disease, but without evidence demonstrating aggravation of spinocerebellar degenerative disease during service, therefore, the additional evidence cannot possibly change the outcome of the veteran's claim. Specifically, we note that a report of a VA hospital summary dated in August 1972 shows that the veteran was admitted to that facility for the fourth time as a transfer from the Albany VA Hospital where he had been sent for neurologic study. It was also noted as history that during his stay at Coatesville VA, he developed difficulty in walking and speaking, and with ataxia of all extremities, nystagmus, blurred vision, and hyperactive upper and lower extremities with plantar extensor reflexors. Earlier electroencephalogram in July 1972 showed some abnormal findings and an electromyogram suggested mild unspecified demyelinating disease. Pertinent reported diagnoses were psychosis with degenerative disease of the central nervous system and seizure disorder, secondary to remote iatrogenic, hypoglycemia (Insulin shock therapy). A VA hospital summary reflecting a period of hospitalization in December 1973 indicated that the veteran had been previously evaluated at a VA facility and diagnosed as olivopontocerebellar degeneration. Subsequent records similarly continued to refer to symptoms attributed to spinocerebellar degeneration (or cerebellar degeneration) with psychotic organic brain syndrome. A special workup by the VA in May 1986 based on a claim for demyelinating disease (multiple sclerosis) claimed by the veteran as spinocerebellar degeneration was negative for any finding of multiple sclerosis or of Olivecronal band. A computerized head scan showed marked degeneration of the cerebellum. He was evaluated thoroughly by a neurologist and they concluded that his condition could not be diagnosed as multiple sclerosis. Since the additional medical evidence dates from years following separation from active duty and primarily refers to a continuation of the neurologic disease process, but without evidence demonstrating pathological advancement during service, such evidence could not possibly change the outcome of this case. Also, the Board notes that at a hearing on appeal at the RO the veteran maintained that his preexisting neurologic condition was aggravated during service because as a result of service time, he suffered severe seizures and a severe psychosis. It was argued that the veteran came out of the military on a medical discharge. He filed a claim with the VA and was granted service connection for the psychosis with degenerative disease and central nervous system spinocerebellar degeneration until severed by the VA. It was argued that the disorder was aggravated by military service beyond it's natural progress since the seizures "really" became prominent when he was in the military. The veteran testified that when he entered active duty he was never told that he was unfit nor spoke to a psychiatrist. He indicated that he did not have any problems at boot camp or advanced training because he used medication which he had prior to service. He indicated that he came into the service controlling his symptoms with 100 milligrams of Dilantin four times daily and 30 milligrams of phenobarbital three times daily. He was also taking Thorazine. Sometimes he wrote home to his physician at Connecticut Valley Hospital for additional medication which he received. He noted that during the Vietnam crisis, he was sent to Germany where after one year he began having seizures. He eventually was given medical testing and it was found that it was better that he be separated from service by medical discharge. We note that the veteran's testimony and arguments raised on appeal are cumulative and repetitious of previous evidence of record and do not raise a reasonable possibility of an allowance in the claim. We note that the testimony of the veteran when viewed in light of the total record shows nothing other than an acute exacerbation of preservice symptoms in service due to intentional noncompliance in service of medication therapy initiated prior to service and without evidence of an increase in the severity of the underlying preservice disorder or that any increase in severity was other than the natural progress of the disorder. Overall, since the additional evidence is not both new and material, it does not support a reopening of the veteran's claim. Accordingly, the unappealed RO rating determination of June 1973 remains final. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for spinocerebellar degeneration, the benefit sought on appeal is denied. WILLIAM J. REDDY 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.