BVA9500390 DOCKET NO. 93-05 715 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. P. Hanson, Counsel INTRODUCTION The veteran served on active duty from November 1951 to July 1952. In May 1954, the Board of Veterans' Appeals (Board) denied the appellant's claim of entitlement to service connection for a neuropsychiatric disorder on the basis that it had preexisted service without aggravation by service. The current appeal arises out of a December 1992 decision issued by the Indianapolis, Indiana, Regional Office (hereinafter RO) informing the veteran that, in the absence of new and material evidence, an application to reopen his claim of entitlement to service connection for a psychiatric disorder was denied. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder and that the claim should be allowed. 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 been entered into the record since the Board's determination of May 1954 and the claim of entitlement to service connection for a psychiatric disorder, classified as a psychosis, is reopened. FINDINGS OF FACT 1. The claim for service connection for a psychiatric disorder was denied by the Board of Veteran's Appeals in May 1954. 2. The application to reopen this claim was received in October 1992; medical evidence of treatment dated from 1954 to the present is new, and relevant and material to the issue of entitlement to service connection for a psychiatric disorder. CONCLUSION OF LAW New and material evidence has been submitted and the claim of entitlement to service connection for a psychiatric disorder is reopened. 38 U.S.C.A. §§ 5107(a), 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105 (1993) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that the clinical evidence of record concerning the manifestations of the appellant's psychiatric disorder before, during and after service, make his claim capable of substantiation. Grivois v. Brown, 6 Vet.App. 136, (1994); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). Under the governing criteria, entitlement to service connection for a psychiatric disorder, to include a psychosis, may be granted, if either is shown to be incurred in or aggravated by service or, in the case of a psychosis, if it is shown to have become manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disease or 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. §§ 1111, 1153 (West 1991); 38 C.F.R. § 3.306(b) (1993). The evidence of record at the time of the May 1954 Board decision may be briefly summarized. The veteran's examination for entry into service was negative for pertinent defect. In April 1952, the veteran was hospitalized. Data recorded for clinical purposes was to the effect that, prior to entering service, he had suffered emotional conflict over the fact that his wife had deserted him, that his father-in-law had beaten him, that his son had reportedly died, and that in the latter part of March 1952, he began to hear voices and had trouble concentrating or thinking clearly. He was considered depressed and tearful and somewhat evasive. The diagnosis was schizophrenic reaction, existed prior to service without aggravation by service. Thereafter, a medical board met and arrived at the same conclusions. A VA field examiner's report dated in February 1953 disclosed that a Dr. J. R. Hamilton had been interviewed. That physician recalled having seen the veteran in September 1951 at the request of his employer. The veteran had been referred because he apparently was talking "silly" about perpetual motion. Dr. Hamilton felt that the veteran's mental condition was in "questionable" state. The plant manager where the veteran had been employed stated that the veteran had been working there since August 1946 until November 1951; that sometime in 1951, several of his foremen had reported that the veteran was talking "silly;" and that, when one of his foremen, mentioned perpetual motion while talking to the veteran, the veteran talked "silly" about it, pounded the table, etc. Similar background information were received by VA in October 1953 from two other private physicians who had examined the veteran at the request of the above-referenced employer. Other information obtained by the field examiner indicated that the veteran was nervous prior to service, that everything seemed to worry him, that the fact he and his wife were divorced was on his mind a lot, and that he expressed ideas about perpetual motion. It was also determined that his family was surprised that he was taken in the service because he was so nervous, although the family also believed he was much worse after service than before. Several lay opinions were expressed that the veteran's condition was definitely worse after service than it was before service. A report of an examination in August 1952 from E. F. Hardtke, a psychiatrist, was added to the record and contained the opinion that a schizophrenic reaction had pre-existed the appellant's period of active service. A series of reports of hospitalization in 1952 and 1953 and a VA examination report dated in 1954 were of record. None of these reports show a medical opinion that the veteran's psychiatric condition had its initial onset in service or that a pre existing psychiatric disorder was aggravated beyond normal progression due to service. On the basis of this evidence, in May 1954, the Board denied the veteran's claim of entitlement to service connection for schizophrenic reaction. A claim, which was disallowed by the Board, may not be reopened and allowed; and no claim based on the same factual basis shall be considered. If new and material evidence is presented, the Secretary of Veterans Affairs shall reopen the claim and review the former disposition. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. §§ 20.1100, 20.1105. New and material evidence means evidence not previously submitted to the agency decision-makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant, which by itself or in conjunction 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). In Chavarria v. Brown, 5 Vet.App. 468, 471 (1993), the United States Court of Veterans Appeals (Court), citing from Cox v. Brown, 5 Vet.App. 95, 98 (1993), held that: "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issues at hand and which...must be of sufficient weight or significance (assuming it's credibility) that there is a reasonable possibility that the new evidence when viewed in the context of all of the evidence both old and new would change the outcome. The Court has further held that in determining whether new and material evidence has been presented, all of the evidence of record must be considered since the last determination on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994). The evidence submitted directly in conjunction with the application to reopened the claim for service connection received in October 1992 consists of statements from two of the veteran's sisters. This evidence consists only of remote recollections of lay observations of the veteran's condition before and after service. While the Court has held that a lay person can provide probative eye-witness evidence of visible symptoms; the Court has also held that a lay person cannot provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492 1992). Moreover, where the determinative issue involves such matters as medical diagnosis or causation, the Court has held that competent evidence must be submitted to make the claim plausible and thus well grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993). The Board concludes that the principles articulated in Espiritu and Grottveit essentially dictate that the question of whether the veteran's psychiatric disorder pre-existed service, and if so whether it was aggravated in service, are matters on which only medical providers may proffer competent evidence. Under the principle in Glynn, however, the Board must also look to the entire record since the 1954 decision to determine whether there is new and material evidence. In this regard, the above cited provisions of the law and regulations mandate that the question of aggravation of a pre-existing disorder requires consideration of the evidence of the manifestations of the disorder before, during and after service. In this case, the record contains extensive post service treatment records, particularly those relating to extended treatment by the VA in the 1950's proximate to the appellant's discharge from service. This evidence would be relevant and material to a determination as to aggravation, and could potentially change the outcome. It clearly would be new as it was not of record at the time of the Board's decision in 1954. Accordingly, the appeal must be deemed to be reopened. ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for schizophrenia, and to this extent the appeal is allowed. REMAND In light of the above discussion, the Board further finds that additional development is warranted as follows: 1. The RO should secure copies of all post service treatment records pertaining to the veteran's mental disorder. This includes all VA and any non-VA treatment. For this purpose, the veteran should be contacted through his custodian and requested to report the dates and places of all such treatment. He should further be requested to complete any necessary authorizations to release records. 2. Following this action, the RO should arrange to have the veteran examined by a specialist in psychiatry. The claims folder and a copy of this remand must be made available for review by the examiner in conjunction with the examination. Following the examination and a review of the complete record, the examiner should provide an opinion as to the following questions: (a) What is the degree of medical probability from manifestly obvious to speculative that the veteran's psychosis existed prior to service? (b) Based upon the evidence of record in this case reflecting the manifestations of the disorder before, during and after service, did the veteran's psychosis increase in severity in service beyond the natural progress to be expected of such a disorder? The examiner is respectfully requested to provide a comprehensive rationale for these opinions. Following these actions, the RO should again review the claim. If the determination remains adverse, a supplemental statement of the case should be provided to the appellant and his representative and they should be accorded an opportunity to respond. The case should then be returned to the Board in accordance with the appellate procedures then in effect. By this action, the Board intimates no opinion, legal or factual as to the ultimate disposition warranted. RICHARD B. FRANK 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.