BVA9506457 DOCKET NO. 91-35 930 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, including post-traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1968 to March 1970, and had periods of active duty for training with the United States Army Reserve. The claims file contains a report of a rating decision dated in July 1988 denying, in relevant part, entitlement to service connection for nervous and back disorders. The veteran was notified of the above determination and of his right to appeal by letter dated in February 1989. The veteran did not timely file a notice of disagreement with the above determination. The current appeal arose from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO, in relevant part, affirmed the prior denials of entitlement to service connection for psychiatric and back disorders. The RO affirmed the prior denial of entitlement to service connection for a psychiatric disorder including post-traumatic stress disorder when it issued a rating decision in November 1990. The prior denials of entitlement to service connection for back and psychiatric disorders were affirmed by the RO in February 1991. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further development in November 1991. The RO affirmed the prior denials of entitlement to service connection for back and psychiatric disorders including post- traumatic stress disorder when it issued rating decisions in February and June 1994. The case has been returned to the Board for final appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has post-traumatic stress disorder which is directly related to his exposure to personal life threatening stressors associated with his service in Vietnam. He avers that he has a chronic back disorder directly related to a back injury sustained while serving with the Army Reserve in August 1984. 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 preponderance of the evidence is against a finding that new and material evidence has been submitted to reopen claims of entitlement to service connection for back and psychiatric disorders including post-traumatic stress disorder. FINDINGS OF FACT 1. In July 1988, the RO denied entitlement to service connection for back and psychiatric disorders, finding that no psychiatric disorder was shown in service, and that a back condition treated while the veteran was on reserve duty was acute and transitory in nature. 2. Additional evidence submitted since the July 1988 rating decision consists of additional psychiatric treatment reports from VA and non-VA psychiatric health professionals, VA treatment and examination reports, service personnel records, stressor statements from the veteran, correspondence and documentation from the United States Army & Joint Services Environmental Support Group, and a favorable determination for Social Security Disability benefits from the Social Security Administration. 3. The additional evidence submitted since the July 1988 rating decision, when viewed in light of all the evidence of record, does not raise a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. The decision of the RO in July 1988, denying the veteran's claims of entitlement to service connection for back and psychiatric disorders, is final. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 2. Evidence received since the RO denied entitlement to service connection for back and psychiatric disorders is not new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board notes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is also satisfied that as a result of the November 1991 remand of the case to the RO for further development, all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). I. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder including post- traumatic stress disorder. The evidence which was of record at the time of the RO's rating decision denying entitlement to service connection for a psychiatric disorder will be summarized below. The veteran served on active duty with the United States Army as a cargo handler. He served in Vietnam and his decorations include a Vietnam Service Medal and a Vietnam Campaign Medal. The service medical records disclosed no evidence of a psychiatric disorder. When examined for separation from active service in March 1970, the veteran denied a history of any psychiatric symptomatology. The clinical evaluation of the psychiatric system was normal. The general medical examination for enlistment in the United States Army Reserves dated in April 1979 noted a normal clinical evaluation of the psychiatric system. The veteran denied a history of psychiatric symptomatology. In a medical certificate dated in June 1972, a private physician advised that he had treated the veteran for nervousness in December 1971 and March 1972. A diagnosis was deferred. Anxiety reaction was diagnosed when the veteran was seen in the VA outpatient clinic in June 1986. In August 1986 it was noted that he had presented similar symptoms of anxiety in 1980 at which time he was treated for gastritis. He was also noted to be nervous and frustrated due to his back. Anxiety and depression were noted. The additional evidence which has been submitted since the July 1988 rating decision by the RO denying entitlement to service connection for a psychiatric disorder will be summarized below. The veteran underwent a psychiatric examination by a non-VA psychiatrist pursuant to a claim for Workman's Compensation Benefits in September 1987. It was noted that the date of the alleged emotional condition was January 28, 1985. On that date the veteran suffered a job trauma resulting in a back injury. He reported that after the accident he had had changes in his personality. In spite of treatment, his emotional condition did not improve. The examination concluded in a diagnosis of dysthymic disorder. VA mental health clinic records dated during the mid to late 1980's show the veteran was treated for psychiatric symptomatology variously diagnosed as nervousness, insomnia, generalized anxiety disorder, anxiety, and post-traumatic stress disorder. The veteran submitted a statement dated in June 1989 in which he described the stressors to which he was exposed in connection with his service in Vietnam. A private psychiatric examination report dated in September 1989 shows the veteran was unable to perform any gainful occupation. In a December 1989 letter, the United States Army & Joint Services Environmental Support Group provided general information pertaining to the veteran's higher headquarters unit operations in Vietnam. Post-traumatic stress disorder, delayed onset; and major depression with psychotic features were diagnosed in connection with a VA hospitalization of the veteran during May and June 1990. A June 1990 report of psychiatric examination by a board of VA psychiatrists shows the veteran was diagnosed with dysthymic disorder; alcohol abuse, in remission, by history; and schizoid personality disorder. An April 1991 favorable determination for Social Security Disability benefits shows the veteran met the disability insured status requirements on October 5, 1989. He was noted to have an affective disorder and an anxiety related disorder. An April 1992 VA psychiatric examination concluded in diagnoses of major depression with post-traumatic stress disorder features and dependent personality traits. In a November 1992 letter, the United States Army & Joint Services Environmental Support Group provided a copy of the operational report for the veteran's higher headquarters unit assigned to Vietnam. It was requested that more specific information be provided pursuant to verification of the veteran's alleged exposure to traumatic combat events. Additional treatment reports from the VA outpatient clinic dated in the early 1990's include diagnostic impressions of post- traumatic stress disorder. After a review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the RO's previous decision in July 1988 denying entitlement to service connection for a psychiatric disorder remains final. "New and material evidence" means "evidence not previously submitted...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). The additional evidence constituting additional VA and non-VA psychiatric treatment and examination reports, correspondence from the United States Army & Joint Services Environmental Support Group, the favorable determination for Social Security Disability benefits, service personnel records, and stressor statements from the veteran are in part new in the sense that they are not cumulative of prior evidence already of record. In this regard, the Board observes that the above noted VA and non- VA psychiatric evidence is essentially cumulative in nature as it does not serve to demonstrate incurrence or aggravation of a chronic psychiatric disorder coincident with active service. The Board observes that the veteran's psychiatric symptomatology has been variously diagnosed. Of particular importance is the fact that while diagnostic impressions of post-traumatic stress disorder have been noted in VA outpatient treatment reports and once during inpatient care, such psychiatric diagnosis has never been substantiated on the basis of non-VA and VA special psychiatric examinations including a board of VA psychiatrists. On VA psychiatric examinations and in statements on file the veteran has provided descriptions of previous events which he considers stressful, but such descriptions are couched in a general and vague manner, and the United States Army & Joint Services Environmental Support Group has been unable to verify exposure of the veteran to any personal life threatening stressor in connection with his service in Vietnam. The Board has considered the criteria under 38 U.S.C.A. § 1154, and would emphasize at this juncture that the Board is cognizant of the circumstances, conditions, and hardships attendant to service in Vietnam. However, the Board would also emphasize that service in this country during the period of hostilities does not create a presumption that the appellant was exposed to psychologically traumatic events of such extent as to provoke significant symptoms of distress in almost anyone thereby resulting in post-traumatic stress disorder. The evidentiary record in this case clearly shows that a diagnosis of post- traumatic stress disorder has not been substantiated. The United States Court of Veterans Appeals (Court) has made clear that the Board is not obligated to accept uncorroborated accounts of alleged stressors. Wood v. Derwinski, 1 Vet.App. 190 (1991), 1 Vet.App. 406 (1994). The Court has further observed that just because a physician or other health care professional accepted the appellant's description of his Vietnam experiences as credible and diagnosed post-traumatic stress disorder does not mean that the Board was required to grant service connection for post-traumatic stress disorder. Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). It is the Board's duty to assess the credibility and weight to be given to the evidence. Wood. As the Board noted earlier, a previous diagnosis of post- traumatic stress disorder has not been substantiated by the evidence or confirmed by the most recent VA special psychiatric examinations of record. The previous diagnoses of post-traumatic stress disorder provided by VA psychiatrists as noted in VA inpatient and outpatient treatment reports are not supported by independent evidence corroborating the appellant's claim that he was exposed to a stressor or stressors in service, nor on the basis of psychiatric examinations conducted by VA and non-VA psychiatrists. In view of the totality of the record, a diagnosis of post-traumatic stress disorder is untenable. The additional evidence associated with the claims file subsequent to the July 1988 rating decision by the RO denying entitlement to service connection for a psychiatric disorder taken collectively is not "material" because there is no reasonable possibility that when it is considered in the context of all the evidence, both new and old, it would change the outcome of the July 1988 rating decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this regard, the Board observes that the veteran's psychiatrist symptomatology, variously diagnosed, as demonstrated in VA and non-VA psychiatric treatment and examination reports and the favorable determination for Social Security Disability benefits, was not shown in service. As the Board noted earlier, the diagnoses of post-traumatic stress disorder are untenable and not substantiated. The Board observes that the additional evidence has in effect reinforced the previous evidence of record by showing that the veteran does not currently have a psychiatric disorder which was incurred in or aggravated by service. The additional evidence in no way refutes the RO's conclusion in July 1988 that service connection is not warranted for a psychiatric disorder. II. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disorder. The evidence which was of record at the time of the RO's rating decision in July 1988 will be summarized below. The service medical records disclosed no evidence of a back disorder. In August 1984, while on active duty for training with the United States Army Reserve, the veteran jumped from the back of truck, thereby sustaining low back pain on the left side. On examination the appellant demonstrated guarded ambulation. There was spasm in the left region of the lumbar spine. Straight leg raising was to 90 degrees and negative. The clinical assessment was muscle strain. A November 1985 VA outpatient treatment report shows that veteran was seen with complaints of back pain. Recurrent and chronic low back pain was noted in later dated VA outpatient treatment reports. The additional evidence which has been submitted since the July 1988 RO rating decision denying entitlement to service connection for a back disorder will be summarized below. Received in April 1989 was documentation pertaining to a claim filed by the veteran for Workman's Compensation. It was reported that he suffered a job trauma on January 28, 1985, resulting in a back injury. The report showed that he had had chronic back pain since the January 1985 injury. The diagnostic impression was herniated nucleus pulposus at L5-S1. Radiographic studies wee interpreted as revealing minimal scoliosis and discogenic disease at the L5-S1 level. Additional later dated VA treatment reports noted the veteran was treated for chronic and recurrent low back pain. After a review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the RO's previous rating decision in July 1988 remains final. "New and material evidence" means "evidence not previously submitted...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). The additional evidence constituting the documentation pertaining to the appellant's claim for Workman's Compensation benefits and VA treatment reports is "new" in the sense that it is not collectively and totally cumulative of prior evidence already of record. Nonetheless it is partially cumulative of evidence of record because it essentially is a continuation of the veteran's complaints of back pain noted in VA treatment reports of record prior to the July 1988 RO rating decision. However, the evidence showing that the veteran sustained an industrial injury to the back is significant. It constitutes an intercurrent injury in relation to the muscle strain diagnosed when the veteran served on active duty for training. It serves to show that the veteran was able to return to industrial employment subsequent to the muscle strain reported while he was serving in the reserves. The veteran's contentions that his low back disorder originated with a muscle strain reported in connection with his reserve duty has not been substantiated. The above evidence taken collectively is not "material" because there is no reasonable possibility that when it is considered in the context of all the evidence, both new and old, it would change the outcome of the July 1988 RO decision denying entitlement to service connection for a back disorder. Colvin. The Board observes that the additional evidence has in effect reinforced the previous evidence of record. It serves to show that the veteran's later complaints of low back symptomatology which have been variously diagnosed cannot be directly related to an acute and transitory muscle strain reported while the veteran served in the reserves. There is no competent medical evidence of record linking the veteran's current back disability with muscle strain reported while he was on reserve duty. The additional evidence in no way refutes the RO's conclusion in July 1988 that service connection is not warranted for a back disorder. ORDER New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, including post-traumatic stress disorder, the benefit requested on appeal is denied. New and material evidence not having been submitted to reopen a claim of entitlement to service connection for a back disorder, the benefit sought on appeal is denied. ALBERT D. TUTERA 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.