BVA9504198 DOCKET NO. 93-01 327 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder with insomnia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to September 1974. In a rating decision dated February 21, 1980, the regional office (RO) denied the veteran's claim for a nervous condition finding that a nervous condition in service was acute and that insomnia existed prior to service and was not aggravated by service. The veteran appealed, and the Board of Veterans' Appeals (Board), in a March 1981 decision, denied the veteran's claim of entitlement to service connection for a nervous disorder with insomnia. In its decision, the Board essentially held that the evidence during service failed to show the presence of a chronic psychiatric disorder. The veteran has sought to reopen the claim since that decision; the RO, styling the issue as "sleep disorder anxiety" declined to reopen the claim in an October 1991 rating decision. In December 1992 and April 1993 statements, the veteran's representative argued that the March 1981 Board decision was based on a faulty premise, a misinterpretation of an entry in the service medical records, and should therefore be set aside as clear and unmistakable error. The regulation governing the revision of decisions through a finding of clear and unmistakable error, 38 C.F.R. § 3.105(a) (1994), applies only to "decisions of rating boards and other agencies of original jurisdiction [(AOJ)]." Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994), rev'g Smith v. Principi, 3 Vet.App. 378 (1992). When an AOJ determination is affirmed by the Board, such determination is subsumed by the final appellate decision. 38 C.F.R. § 20.1104 (1994). Since the AOJ decision was subsumed by the Board's decision, no claim of clear and unmistakable error exists with respect to that AOJ decision. Duran v. Brown, No. 93-388 (U.S. Vet. App. Dec. 13, 1994), slip op. at 12. Otherwise final decisions of the Board are, therefore, not subject to collateral review for clear and unmistakable error under 38 C.F.R. § 3.105(a) (1994). Review of a prior final decision may be obtained by filing a motion for reconsideration in accordance with 38 C.F.R. § 20.1001 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he did not have insomnia since childhood and that the report of situational reaction was an initial impression "by a PFC" and that, in effect, no reliance should have been placed on this finding. 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 a claim of service connection for a psychiatric disorder with insomnia. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO insofar as possible. 2. The March 1981 Board decision denied the claim of entitlement to service connection for a psychiatric disorder with insomnia. 3. Additional evidence received since then March 1981 Board decision is either duplicative of evidence previously considered or reports symptomatology which occurred years after service. CONCLUSIONS OF LAW 1. Evidence received since the March 1981 Board decision that denied service connection for a psychiatric disorder with insomnia is not new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The decision of the Board in March 1981 denying the veteran's claim for a psychiatric disorder with insomnia has not been reopened and remains final. 38 U.S.C.A. §§ 5107(a), 7104(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially finds that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. We also find that the Department of Veterans Affairs (VA) satisfied its statutory obligation to assist the veteran in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1994). On appellate review, we see no areas in which further development may be fruitful. Service connection may be granted for disabilities resulting from disease or injuries incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). In March 1981, the Board denied the veteran's claim of service connection for a nervous disorder with insomnia. Where new and material evidence is submitted with regard to a claim and previously disallowed, the VA must reopen the claim and review the former disposition of the case. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, 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) (1994) (emphasis in the original). The claim will be reopened if there is "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The evidence of record received since the March 1981 Board decision includes a number of VA outpatient treatment records (OPTR's) that are duplicative of evidence received in the claims folder prior to that decision, including VA OPTR's dated in: March, April, May, June, July, August, and November 1978, and December 1979. Since this evidence is duplicative and therefore not new, it does not satisfy the new and material requirement and does not reopen the veteran's claim. Other evidence of record is new in that it was not of record prior to the March 1981 Board decision, but is not material to the claim. This evidence includes voluminous medical records dated in 1980 and thereafter. Certain of these records do refer to psychiatric problems and sleep difficulties. These records, however, are dated long after service and do not relate the current findings to service. An October 1986 VA OPTR, also new in that it was not of record prior to the Board's March 1981 decision, included an examiner's notation that the veteran complained of trouble sleeping and that "[s]ince 1971 - has been a [patient] at [North Little Rock Division] - as an [outpatient] in [the Mental Health Clinic] - last [treatment] 2 weeks ago." The reference to the year 1971 is prior to the veteran's entry onto active duty, but does not indicate the type of treatment afforded the veteran. Moreover, the veteran would not have been eligible for VA medical care prior to his entry onto active duty in July 1972. In any event, in January 1980 the RO requested "all medical reports pertaining to the veteran's nervous condition" from the North Little Rock VA Medical Center. Various treatment records were associated with the claims folder, but did not include records prior to active service or earlier than approximately 1977. In the November 1992 personal hearing, the hearing officer noted that the RO indicated in the December 1991 Statement of the Case that the evidence showed insomnia existed since adolescence. The veteran asserted that this was incorrect and that he had a statement submitted from Dr. Guy U. Robinson, M.D., his family physician, indicating that the veteran had never been treated for a sleep disorder. Dr. Robinson's statement, dated in December 1990, stated that the veteran had "never been treated by me, nor in our clinic for a sleep disorder. He has been a patient of the clinic since 1962." Although the December 1991 statement of the case relates that the insomnia was noted to have existed before service, the March 1981 Board decision did not base its findings on the premise that the veteran's disorder existed prior to service, but instead concluded that the service medical records showed situational anxiety that is not a disease or injury within the meaning of applicable legislation. The fundamental reason for the decision was the absence, in that Board's judgment, of a showing of a relevant chronic condition during service and the lack of continuity of symptomatology after service. Where the presence of a chronic disorder during service is not adequately supported, then a showing of continuity after discharge is needed to support the claim. 38 C.F.R. § 3.303(b). Dr. Robinson's December 1990 statement, therefore, is not material to the inquiry. The testimony further provided at the hearing essentially duplicated matters previously raised. The deficiencies in the record perceived by the Board in 1981, namely the lack of a showing of chronicity during service and the absence for an extended period after service of relevant symptomatology, have not been affected by the "new" evidence. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder with insomnia, the benefit sought on appeal is denied. JOHN E. ORMOND 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.