Citation Nr: 0003812 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 93-22 132A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for post traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from November 1951 to April 1953. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an April 1993 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO), which held that new and material evidence had not been submitted to reopen the claims for service connection for psychiatric and low back disability. FINDINGS OF FACT 1. The Board denied service connection for post traumatic stress disorder (PTSD) in December 1988 because it found that the clinical evidence of record did not substantiate the diagnosis for PTSD. That decision is final. Evidence submitted since that decision is essentially cumulative in substance of evidence previously considered and does not show that the appellant has PTSD related in service other than by history of the appellant. 2. The Board denied service connection for low back disability in August 1977, April 1982, and again upon reconsideration in August 1987, because the evidence of record failed to show aggravation of a pre-existing back problem. Evidence submitted since the last final decision is essentially cumulative of the evidence previously considered and does not tend to show aggravation of the back disability in service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim to service connection for PTSD has not been presented. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. New and material evidence sufficient to reopen the claim to service connection for low back disability has not been presented. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The appellant served on active duty in the United States Marine Corps from November 1951 to April 1952. Induction examination dated November 1951 was negative for back and psychiatric defects although a history of low back pain prior to service was noted. Service medical records reflect that the appellant was seen 3 days after entrance into service for complaints of back pain. At that time, the appellant reported a history back injury in 1948 prior to entering the service along with treatment by a private physician. He further reported that he had been kicked in the back by a sergeant upon arrival at the military base because he had been complaining of his back. On hospital admission 2 days later, the appellant was crying, perspiring profusely and presenting symptoms of conversion reaction. On orthopedic examination, he held his back rigidly with much spasm of the muscles. He resisted attempts to elevate or flex his legs. The impression was back sprain and conversion reaction. He also resisted passive exercise attempts due to pain. X-rays of the lumbosacral spine revealed very minimal narrowing of the 12 thoracic and 1st lumbar vertebral spaces and no other bone, joint or intervertebral abnormalities. Service medical records dated December 1951 reflect that a neuropsychiatric consultation was performed. The appellant was amazingly histrionic, self-demanding, tearful and trembling, such that a history was near impossible to obtain. Mental status examination revealed that he was oriented and without psychotic ideation. The diagnosis was musculoskeletal somatization reaction in an inadequate personality. Subsequent neuropsychiatric examinations were within normal limits with the exception of the legs. There were subjective complaints of numbness and general weakness although clinical findings were negative for neurological deficit. The initial impression was musculoskeletal somatization reaction. Orthopedic examination revealed voluntary inhibition of straight leg raising, no reflex or motor impairment, and no atrophy. It was noted that there was absolutely no evidence of muscle spasm and the appellant did not maintain a rigid back when he was tired. A Board of Medical Survey diagnosed psychogenic musculoskeletal reaction, existing prior to service, and not aggravated by service. The appellant was thereafter separated for the convenience of the Government. In May 1952, the appellant originally claimed entitlement to service connection for psychiatric and back disability. In support of this claim, he submitted a private physician's statement that reflects treatment for work-related back injury in 1948 and that he had treated the appellant for back complaints after his separation in April 1952. He also submitted several statements from friends and relatives (including his brother) to the effect that the appellant's back condition was worsened in service. VARO denied the claims in August 1952. In June 1976, the appellant attempted to reopen his claims based on statements from his brother and co-workers, to the effect that he had severe back problems since service, post- service treatment records showing treatment for back complaints, and sworn testimony from a personal hearing conducted in December 1976. It was noted that the appellant was unable to obtain private medical records showing treatment soon after service discharge. He submitted documentation of having had many employers since service discharge. In an August 1977 decision, the Board denied service connection for psychiatric and back disability because a new factual basis had not been presented to reopen the claim. It was noted that evidence had not been presented showing that either disability was incurred in, or aggravated by, service. In a July 1982 decision, the Board denied service connection for psychiatric and back disability because a new factual basis had not been presented to reopen the claims. In addition to the above evidence, the Board also considered a May 1954 medical statement from G. Scovner, M.D., which reflects that he treated the appellant for a back and psychiatric disorder following his discharge, and an affidavit from the appellant's brother. The appellant's brother stated that he had seen the appellant in the hospital in service and that the appellant reported having been kicked and beaten. In August 1986 decision, the Board denied service connection for psychiatric and back disability because a new factual basis had not been presented to reopen the claims. In addition to the above evidence, the Board also considered various statements from the appellant along with sworn testimony from a July 1986 hearing, wherein he argued that the claimed disability resulted from a serious beating he received in service. In an August 1987 reconsideration decision, the Board continued to deny service connection for psychiatric and back disability because a new factual basis had not been presented to reopen the claims. After the Board's August 1987 reconsideration decision, the following evidence was received: VA outpatient treatment records dated January 1985 to March 1988, showing back complaints and psychiatric follow-up with a history of a severe physical beating in service; and a VA hospital report for the period of September to October 1986, which reflects diagnoses for atypical affective disorder and PTSD, and a history of recurrent nightmares and severe anxiety reaction stemming from a beating in service. In December 1988, the Board denied service connection for PTSD with consideration of the above evidence. The appellant elaborated his account of the in-service incident to include being sexually brutalized by various military personnel. The Board determined that, although the evidence of record included a diagnosis for PTSD, this diagnosis was not substantiated by the appellant's background or clinical symptomatology. In March 1993, the appellant most recently requested reopening of his claims for service connection for psychiatric and back disability. In support of his claims, the VA received a VA hospital summary dated October 1986, VA outpatient treatment notes dated July 1991 to January 1998, lay statements from the appellant's brother and his wife, numerous private medical statements, and sworn testimony from hearings conducted in November 1996 and November 1999. VA outpatient treatment notes dated July 1991 to January 1998 show that the appellant was seen for back complaints and PTSD. Various treatment entries show the appellant's preoccupation with the alleged in service beating incident. A statement from the appellant's brother in essence reiterates the substance of earlier statements of record. A statement from the appellant's wife reflects that the appellant was a different person after discharge from the military. Letters dated October 1995 and November 1996 from S. Segal, M.D., reflect that the appellant received monthly psychotherapy and medication management since February 1995 for PTSD. It was noted that the appellant had persevering thoughts concerning an alleged beating during basic training in service, and that the appellant believes that he was close to death as a result of that beating. A letter dated December 1995 from B. Tarr, M.D., reflects that the appellant was referred to him for evaluation of a history of low back pain going back 40 years or more. Examination was essentially unremarkable and x-rays showed only degenerative arthritic changes of the lumbosacral spine. The appellant was advised to lose weight, take warm baths, and use Tylenol as needed. A letter dated January 1998 from M. Ambrose, M.D., the appellant's VA physician, reflects that the appellant was diagnosed with generalized anxiety disorder and PTSD. It was noted that the appellant was "very anxious, constantly reliving incidents that he says took place while he was in basic training in the Army." The appellant described this incident as having "destroyed my life." A letter dated November 1999 from M. Barnett, M.D., reflects that the appellant was under treatment for PTSD and symptoms of clinical depression. It was noted that the appellant related his PTSD to a physical assault in service. Sworn testimony from the appellant in 1996 and 1999, along with his brother in 1996, reflects the continued belief that the appellant was severely beaten in service resulting in PTSD and aggravation of his back disorder. II. Analysis The Board most recently denied the appellant's claims for service connection for PTSD and back disability in December 1988 and August 1987, respectively. These decisions are final. We note that final rating determinations are not subject to revision upon the same factual basis. 38 U.S.C.A. § 7104 (West 1991), 38 C.F.R. § 20.1100 (1999). Under pertinent law and regulations, as interpreted by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (the Court), the Board may reopen and review a claim which has been previously denied only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998); Manio v. Derwinski, 1 Vet.App. 140 (1991). The credibility of the new evidence is presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Court has held that the provisions of 38 U.S.C.A. § 5108 (West 1991) require a review of all evidence submitted by the claimant since the last final denial of a claim in order to determine whether a claim must be reopened and adjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994); see also Evans v. Brown, 9 Vet.App. 273, 285 (1996). According to 38 C.F.R. § 3.156(a) (1999): "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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. The well groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet. App. 134 (1994). While this appeal was pending, the United States Court of Appeals for the Federal Circuit rendered its decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the Federal Circuit changed the law as it pertains to the submission of new and material evidence and offered guidance as to how the Court should review such determinations made by the Board. First, the Federal Circuit invalidated the test adopted by the Court in Colvin v. Derwinski, i.e., that evidence was new and material sufficiently to reopen a claim if the evidence, when considered with the other evidence, would raise a reasonable possibility of changing the outcome. 1 Vet.App. 171, 174 (1991). The Federal Circuit proceeded to adopt the standard set forth in 38 C.F.R. § 3.156(a) (1997) as the appropriate standard for determining whether new and material evidence had been submitted. Second, as a result of Hodge and the Federal Circuit's recitation that the determination of whether new evidence is sufficiently material is a "fact-specific determination," "a deferential standard of review of these decisions under 38 U.S.C. § 7261(a) becomes the proper one." Fossie v. West, 12 Vet.App. 1 (1998). Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. After reviewing the most recent evidentiary submissions, the Board finds that the evidence is neither new nor material to the issue of service connection for PTSD or back disability since it does not provide any new factual basis for consideration of the claims. New evidence is that which is not merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990). Material evidence is that which is relevant and probative of the issue at hand. Colvin, supra., citing Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). The most recent evidentiary submissions continue to show that which was previously shown on consideration of the claims, which is that the appellant claims to have PTSD due to an alleged beating in service and that an alleged beating in service aggravated his pre-existing back problems. We note that service medical records are negative for any evidence of a severe beating, but rather show only that the appellant was kicked in the back and suffered an hysterical reaction. Additionally, the most recent evidentiary submissions do not tend to show that the appellant has PTSD due to service or an in-service event, except by unsubstantiated history which was previously noted in the Board's prior decisions. Therefore, we conclude that new and material evidence has not been presented to reopen the claims for service connection for PTSD and back disability. Accordingly, the Board does not have jurisdiction to consider the previously adjudicated claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.App. 167, 171 (1996) (When new and material evidence has not been submitted in a previously disallowed claim "[f]urther analysis . . . is neither required, nor permitted."). ORDER Having found that new and material evidence has not been presented to reopen the claim, service connection for PTSD remains denied. Having found that new and material evidence has not been presented to reopen the claim, service connection for back disability remains denied. C.P. RUSSELL Member, Board of Veterans' Appeals