BVA9507185 DOCKET NO. 92-02 933 ) 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 has been submitted to reopen claims for entitlement to service connection for an acquired psychiatric condition, including an anxiety disorder or a post- traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from July 1968 to February 1971. In May 1974, the appellant claimed entitlement to service connection for a nervous condition, including a generalized anxiety disorder. By a rating decision dated July 1974, that claim was denied. The appellant was notified of the decision in that same month, but no timely notice of disagreement was filed. This is the last final decision on the merits on the issue of service connection for an acquired psychiatric disorder (other than PTSD). By a decision issued in February 1985, the Board of Veterans' Appeals (Board) denied entitlement to service connection for PTSD. This matter comes before the Board on appeal from a November 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the appellant's request to reopen claims for entitlement to service connection for anxiety and PTSD. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that additional medical records, reflecting treatment of anxiety since 1974 and treatment since 1985 for PTSD, are new and material. The appellant's representative contends that the appellant has provided satisfactory documentation that he was exposed to a stressor recognized as sufficient to cause PTSD. The representative also contends that the information provided by the Department of the Army, Environmental Support Group, corroborates the appellant's description of exposure to a recognized stressor. 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 appellant has not submitted new and material evidence upon which to reopen claims of entitlement to service connection for an acquired psychiatric disorder, including an anxiety disorder or PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. A rating decision issued in July 1974 which denied entitlement to service connection for a nervous condition including generalized anxiety disorder was the last final decision on the merits as to a claim of entitlement to service connection for an acquired psychiatric disability other than PTSD. 3. Additional evidence received since the July 1974 decision does not raise a reasonable possibility of changing the outcome of the case, since the appellant has not provided a medical opinion, medical literature, or medical evidence of any type, other than medical treatment notes reflecting medical history provided by the appellant, establishing or tending to establish that an acquired psychiatric disability, including an anxiety neurosis, was incurred during or as a result of service. 4. A Board decision issued in February 1985 which denied entitlement to service connection for PTSD was the last final decision on the merits as to entitlement to service connection for PTSD. 5 The appellant did not engage in combat with the enemy. 6. Additional evidence received since the February 1985 decision does not raise a reasonable possibility of changing the outcome of the case, since the appellant has not provided any evidence corroborating or tending to corroborate his unsubstantiated account of exposure to stressors in service. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted since the July 1974 rating decision, which denied the claim for service connection for an acquired psychiatric disability (other than PTSD). The claim for service connection for an acquired psychiatric disability (other than PTSD) may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.303, 3.156, 20.302 (1994). 2. New and material evidence has not been submitted since the February 1985 Board decision, which denied the claim for service connection for PTSD. The claim for service connection of PTSD may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.304(f), 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A final rating decision or a final decision of the Board disallowing a claim may not thereafter be reopened and the claim may not be reviewed unless new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. §§ 7104(b), 7105, 5108 (West 1991); 38 C.F.R. § 3.156 (1994). When an appellant seeks to reopen a previous final decision disallowing a claim, a two-step analysis is conducted to determine whether new and material evidence has been presented as defined in § 5108. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Here, the Board must first determine whether the evidence presented or secured since each prior final disallowance is new and material when viewed in the context of all the evidence, both old and new, presuming the credibility of the new evidence. Justus v. Principi, 3 Vet.App. 510, 513 (1992); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has been submitted, then the claim must be reopened and reconsidered based on all of the evidence, both old and new. However, if no new and material evidence is submitted, the claim is not reopened and no further analysis is required. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). "New" evidence is evidence which is not merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171 (1991). "Material" evidence is relevant and probative of the issue at hand. Id. Evidence, in order to be new and material, must raise a reasonable possibility that when viewed in conjunction with all evidence, both old and new, the new evidence would change the outcome of review of the claim. Id. at 174. In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). This presumption is made only for the purpose of determining whether the case should be reopened. Id. However, the presumption of credibility of the evidence does not arise where the factual premise of a new medical opinion has previously been rejected by VA. An opinion based upon an inaccurate factual premise, even if not expressly so stated, is no better than the facts alleged and has no probative value. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). Thus, a medical statement based on a factual premise already rejected by VA is without probative value, and thus is not material. See Curry v. Brown, 7 Vet.App. 59, 66 (1994). New and Material Evidence to Reopen a Claim for Service Connection for an Acquired Psychiatric Condition Other Than PTSD The evidence of record at the time of the August 1974 rating decision included service medical records from April 1968 to February 1971, a service discharge examination dated February 1971, discharge summaries from VA hospitalizations in January and December 1972, and records of private outpatient treatment in 1974. Service medical records revealed a history given on an April 1968 preinduction examination of stuttering associated with "nerves." In February 1971, the appellant had several physical complaints, which the examiner determined were related to anxiety, and Librium was prescribed. No further treatment for anxiety following that single treatment episode was noted. A discharge examination, dated February 1971, was negative for a psychiatric diagnosis or complaints or anxiety. Post service medical records of record at the time of the July 1974 rating decision showed that the appellant was hospitalized in January 1972 for treatment of hepatitis and in December 1972 for removal of a polyp from his right vocal cord. The appellant was seen in January 1974 in the Rockville General Hospital for difficulty breathing and chest pain, which the examiner diagnosed as anxiety. The appellant was also examined in April 1974 for dysphagia by Paul S. Norman, M.D. That examination was negative and Dr. Norman determined that the dysphagia was due to tension. The evidence of record also included a statement from Neil H. Brooks, M.D., indicating that he treated the appellant in April and May 1974 for depression. Thus, the RO concluded, based on the evidence of record at the time of the 1974 rating decision, that the appellant's anxiety in service in February 1971 was acute and transitory, since the appellant was seen only one time, and the separation examination later in February 1971 was negative for complaints or diagnosis of anxiety, and since the appellant was not treated again for anxiety or other complaint related to a psychiatric disability until approximately three years after service. While the evidence of record since 1974 provides more information about the appellant's treatment since that time, the new evidence associated with the claims folder since the July 1974 rating decision consists primarily of additional clinical records showing that the appellant was treated for anxiety and other psychiatric conditions after 1974, reports of health care providers which reflect complaints of anxiety or diagnoses of anxiety and other psychiatric disabilities, and the appellant's testimony at a personal hearing held in June 1984. The additional evidence received since the July 1974 decision does not raise a reasonable possibility of changing the outcome of the case, since the evidence does not include a medical opinion, medical literature, or medical evidence of any type, other than medical treatment notes reflecting medical history provided by the appellant, establishing or tending to show that an acquired psychiatric condition was incurred during or as a result of service. The medical evidence in fact reflects that the appellant's complaints of anxiety in 1971 and 1974 were acute and transitory, that there were intercurrent situational causes of anxiety and depression in 1974, and that the appellant did not receive treatment for a chronic acquired psychiatric disability until several years after service. New evidence associated with the claims folder since the July 1974 rating decision shows that the appellant was seen at a private hospital in May 1974 at which time a long history of hypochondriasis and "nerves and depression" was reported. On a VA Mental Health Clinic intake note dated in June 1974 the psychologist described the basis for his finding that the appellant had an impulsive character disorder and a depressive reaction. In a January 1975 note indicating that the appellant had discontinued treatment through the Mental Health Clinic, the psychologist stated that the appellant had displayed anxiety centered around his marital difficulties, and that the marital difficulties were attendant on the appellant's difficulty retaining employment and excessive use of alcohol and drugs. It was felt that the pattern was consistent with the appellant's pattern of behavior as a youngster, as discussed in the initial findings of an impulsive character disorder. Records obtained from Neil H. Brooks, M.D., show that Dr. Brooks treated the appellant in 1973 and 1974 for chest pain and other physical symptoms, but provide no additional information about the appellant's 1974 symptoms of depression or the origins of that depression. New medical evidence shows that the appellant was seen for minor physical complaints in 1973, 1975 and 1976. No complaints of anxiety or other signs or symptoms of psychiatric disability are noted in this additional evidence. However, the new evidence of record shows that, beginning in 1981 and continuing through 1992, the appellant was treated for a variety of psychiatric symptoms and disabilities, including anxiety, substance abuse and depression. Based on the history provided by the appellant, the examiner who conducted a February 1993 VA examination diagnosed the appellant as having mildly- symptomatic PTSD, but the examiner did not diagnose a psychiatric disorder other than PTSD. Material evidence to establish service connection would include evidence showing that a chronic disease was manifested during service, or proximate to service or that the disease has been chronic and continuous since service. See Wilson v. Derwinski, 2 Vet.App. 16 (1991); 38 C.F.R. § 3.303(b) (1992). The record reflects that treatment of chronic mental illness, diagnosed as depression, dysthymic disorder, and anxiety, began in 1981, more than ten years after the appellant's discharge from service, at a time too remote from service to establish or tend to establish that chronic anxiety or a chronic acquired psychiatric disorder was incurred in service or that symptoms were continuous after service. There is no evidence showing continuity of acquired psychiatric symptoms from the episode in service to the episodes in 1974, several years after service. Thus, the new evidence submitted since the July 1974 rating decision regarding treatment of an acquired psychiatric disorder is not material, since the new evidence does not tend to prove that the appellant suffered a chronic acquired psychiatric condition until several years after service, nor is there medical evidence linking development of a chronic acquired psychiatric condition (other than PTSD) to service. Duran v. Brown, 7 Vet.App. 216, 220 (1994); Sklar v. Brown, 5 Vet.App. 140, 145 (1993). Because the new evidence shows that the appellant's anxiety was in fact episodic rather than chronic for several years after service and does not establish chronic symptoms or treatment until 1981, the evidence tends to disprove the appellant's claim and does not present a reasonable possibility of changing the outcome. Material evidence would also include medical evidence establishing a definite link between a chronic acquired psychiatric disability other than PTSD and the appellant's service. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The appellant has submitted medical opinions or statements from several treating health care providers that he has PTSD as a result of stressors in service, but he has submitted no evidence, other than his own unsubstantiated lay allegations, that he has an acquired psychiatric condition other than PTSD as the result of service. There is no new and material medical evidence in the record establishing or tending to establish a link between the appellant's service and an acquired psychiatric condition other than PTSD. Assuming the credibility of all new evidence, the appellant has not raised a reasonable possibility of changing the final 1974 decision, and the provisions of 38 U.S.C.A. § 5108 are not applicable. New and Material Evidence to Reopen a Claim of Entitlement to Service Connection for PTSD The evidence of record at the time of the Board's final 1985 decision denying service connection for PTSD included service medical records and some personnel records, records of VA hospitalizations in 1972, reports of private treatment dated in 1974, VA outpatient treatment reports from 1981 to 1984, a report of a VA examination conducted in December 1983, June 1984 statements from a team leader at a Vietnam Vet Center and a private psychologist and the appellant's testimony in a personal hearing held in June 1984, including the appellant's testimony that he saw the dismembered body of a servicemember killed in an explosion. The medical evidence considered prior to 1984 is essentially as described above. The appellant submitted a statement from Ronald N. Casey, Ph. D., dated June 1984, diagnosing the appellant as having PTSD, based on the appellant's description of a stressor in which a sergeant was killed in a helicopter explosion. Dr. Casey found that the appellant had an exaggerated startle response and intrusive memories of a stressor experience in Vietnam in which a sergeant was dismembered in a helicopter explosion. Although the appellant denied having nightmares or flashbacks during examination in December 1983, Dr. Casey stated that the appellant had recurrent dreams of the explosion and flashbacks. Roy W. Driver, Team Leader, Vietnam Vet Center, provided a June 1984 opinion relating the appellant's symptoms of anxiety, nervousness, and depression to his service in Vietnam and a stressor in which a servicemember was killed. The appellant further described this stressor during his 1984 personal hearing. However, no evidence of record at the time of the Board's February 1985 decision corroborated the appellant's claimed stressor experience. Each of the 1984 opinions that the appellant had PTSD were based on the appellant's uncorroborated description of a stressor and his description of intrusive thoughts of this stressor. The evidence regarding the appellant's claim for service connection for PTSD since the Board's 1985 decision includes primarily records of treatment from 1986 through 1992, reflecting treatment for psychiatric conditions, including PTSD, and additional descriptions by the appellant regarding the stressors he experienced during service. The additional evidence includes records providing diagnoses of PTSD by additional clinicians, based on the appellant's unverified descriptions of his war experiences. The new evidence, however, does not include evidence verifying or tending to verify the appellant's statements regarding stressors. Additional medical records dated 1973 through 1983 which were not of record at the time of the Board's February 1985 decision provide additional information about the appellant's treatment for anxiety, depression, personality disorder, dysthymia, and drug abuse, but these new records do not include description of stressors in service or complaints of flashbacks, nightmares, or other signs or symptoms of PTSD, other than anxiety and depression. These additional records for the period 1973 through 1983, therefore, are cumulative, since the Board's 1985 decision specifically noted that the appellant had been treated for depression and anxiety beginning in the mid-1970's. Records dated 1989 through 1993 document further treatment for psychiatric conditions, including diagnoses of PTSD. The medical evidence of record since 1985 includes a February 1993 VA examination in which the examiner concludes, based on the appellant's description of stressors in service, that the appellant had mildly symptomatic PTSD. The examiner based his diagnosis of PTSD on the appellant's description of a stressor in service. That evaluation noted that the appellant stated that he could not control his thoughts about his service experiences and was distrustful of others. The examiner noted the appellant's statements that he was nervous, depressed, had few friends, and that he tended to "be alert about things," but the evaluation does not describe other signs or symptoms defined as characteristic of PTSD, such as flashbacks or hypervigilance, nor did it describe the content of any nightmares as related to events of war or avoidance of reminders of war. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS-III-R (3d ed. rev. 1987), 38 C.F.R. § 4.125 (1994). A December 1992 statement from the Lake Worth, Florida, Vet Center, provided a provisional diagnosis of PTSD, among other conditions. The new medical evidence of record also includes lengthy outpatient treatment notes dated October 1989 through November 1992, reflecting treatment for depression, anxiety, drug abuse, and PTSD, among other diagnoses. The appellant's unverified description of stressors in service is described in the 1990 through 1992 treatment notes reflecting diagnoses of PTSD. The appellant contends that additional clinical records provided since 1985 are material because these records show that clinicians have diagnosed the appellant as having PTSD. A presumption of credibility applies generally to "new" evidence for the purpose of determining whether a case should be reopened. See Justus v. Principi, 3 Vet.App. at 512. That presumption, however, does not arise where the factual premise of a new medical opinion has previously been rejected by VA. An opinion based upon an inaccurate factual premise, even if not expressly so stated, is no better than the facts alleged and has no probative value. Curry v. Brown, 7 Vet.App. 59, 66 (1994); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993). However, even if it is assumed that the 1993 VA examination is new and probative since the 1983 examination for compensation purposes had not found PTSD, there must still be new and material evidence tending to corroborate the appellant's assertion of a stressor. The Board's February 1985 decision is consistent with 38 C.F.R. § 3.304(f), which requires credible supporting evidence of a claimed stressor not related to combat. Here, because the claimed stressor is, by the appellant's own description, not combat-related, the appellant's lay testimony, by itself, does not establish occurrence of a claimed stressor. See West v. Brown, 7 Vet.App. 70, 76 (1994); Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). He also was not awarded the Purple Heart, Combat Infantryman Badge or similar citation denoting combat exposure. 38 C.F.R. § 3.304(f). Because the Board finds that the appellant did not engage in combat, in order to establish a claim of entitlement to service connection for PTSD, there must be objective evidence to establish that the appellant was exposed to a stressor sufficient to provoke PTSD. The Board is not bound to accept a veteran's uncorroborated account of his Vietnam experiences or the unsubstantiated opinion of a psychiatrist that PTSD is of service origin. Wood v. Derwinski, 1 Vet.App. at 192. The appellant's descriptions of his wartime experiences establish that he suffered the stresses common to all military personnel with service in a combat zone. Service in a combat zone does not, in and of itself, constitute a sufficient stressor to support a diagnosis of PTSD. Zarycki v. Brown, 6 Vet.App. 91, 101 (1993); Wood v. Derwinski, 1 Vet.App. at 192. In the evidence since 1985, the appellant has provided several additional descriptions of his war experiences. By letter dated January 1993, the RO requested that the appellant provide specific information about his units assignments and stressors in service. The appellant stated that individual whose dismembered body he saw was an E-6 in rank. The new information provided by the appellant, as well as a summary of all the appellant's stressor information, was provided to the Environmental Support Group (ESG) for the United States Army, in April 1993. The ESG requested more specific information about the date and location of the incident, and, by letter dated December 1993, the appellant was notified of this request. The evidence of record does not include a response from the appellant to the ESG request for more specific information. The ESG also provided a history of the 13th Combat Aviation Battalion, 1st Aviation Brigade, which included the 221st Reconnaissance Airplane Company, with which the appellant served. The history provided by the ESG included a list of the names and ranks of all individuals in the 13th Combat Battalion who died in 1970, the year in which the appellant indicated the stressor explosion occurred. That list did not include any individual with an E-6 rank. Although the appellant's representative asserts that the ESG's statement that it is likely that the appellant did perform aircraft mechanic duties corroborates the appellant's description of a stressor, the ESG's statement is cumulative of evidence of record of the appellant's service specialty. The information provided by the ESG does not corroborate or tend to corroborate the appellant's description of a stressor recognized as sufficient to cause PTSD. The appellant's representative also suggests that the appellant's stressor is corroborated by the appellant's diagram of the occurrence and by the fact that the appellant was awarded the Army Commendation Medal. The fact that the appellant received that award was of record at the time of the prior final decision in 1985. That award, unlike awards given only for combat service, is not conclusive evidence that the appellant engaged in combat with the enemy. See 38 C.F.R. § 3.304(f). The appellant himself does not contend that he engaged in combat with the enemy. Thus, neither the award nor the appellant's diagram may be considered conclusive or corroborating evidence of the stressor the appellant alleges he experienced. See 38 C.F.R. § 3.304(f) (1994). In determining whether new and material evidence has been submitted in this case, all evidence submitted since February 1985, the last final determination on the merits, has been considered. See Glynn v. Brown, 6 Vet.App. 523 (1994). In this case, material evidence, evidence that would be probative of the appellant's claim that he developed PTSD as a result of service, would include evidence establishing a new factual basis for the claim, such as evidence that the appellant served in combat, or evidence corroborating the appellant's unsubstantiated account of non-combat-related stressors. The additional evidence since 1985 includes no evidence tending to show that some stressors were experienced in combat, nor does it include any evidence tending to corroborate the appellant's description of his war experiences. Therefore, this evidence is not "material," because without corroborating evidence, the appellant's descriptions of alleged stressors do not raise a reasonable possibility that the new evidence would change the outcome of the decision on the appellant's claim. He has been requested to provide more specific information, and he cannot passively wait for corroboration of his stressor experience where his information is essential to further efforts to locate information. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Without such material evidence, the Board has no jurisdiction to reopen the final denial of appellant's claim of entitlement to service connection for PTSD. ORDER New and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD has not been submitted. The claim is not reopened. New and material evidence to reopen a claim of entitlement to service connection for PTSD has not been submitted. The claim is not reopened. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.