Citation Nr: 0007442 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-15 553A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a nervous disorder. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from January 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The veteran did not address a claim of entitlement to service connection for Bell's palsy in his September 1998 substantive appeal, and he specifically withdrew any claim for such benefits in an August 1999 statement. Therefore, this issue, having been withdrawn in writing by the veteran, is not in appellate status and will not be addressed by the Board. 38 C.F.R. § 20.204 (1999). FINDINGS OF FACT 1. In September 1996, the RO denied a claim to reopen the issue of entitlement to service connection for a nervous disorder, and a timely appeal was not perfected therefrom. 2. Evidence received since the September 1996 RO decision is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to direct service connection for a nervous disorder. CONCLUSIONS OF LAW 1. The September 1996 RO decision denying a claim to reopen the issue of entitlement to service connection for a nervous disorder is final. 38 U.S.C.A. § 7105(b) (West 1991). 2. The evidence received since the September 1996 RO decision is not new and material, and the veteran's claim of entitlement to service connection for a nervous disorder on a direct basis is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Once an RO decision becomes final under 38 U.S.C.A. § 7105(c), "the Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The RO notified the veteran of its September 1985 decision denying service connection for a nervous condition in October 1985. Schizophrenia is considered a nervous condition pursuant to the Schedule for Rating Disabilities. It indicated that the evidence did not establish service connection for a nervous condition. That decision was not appealed, and it is final. See 38 U.S.C.A. § 7105. A claim which is final may be reopened through the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In September 1996, the RO denied the veteran's claim to reopen the issue of entitlement to service connection for a nervous disorder. An appeal to that decision was not perfected in a timely manner. See 38 U.S.C.A. § 7105. New and material evidence is evidence that has not previously been submitted to agency decisionmakers 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. New and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis. Evidence presented since the last final disallowance need not be probative of all elements required to award the claim, but need be probative only as to each element that was a specified basis for the last disallowance. VA must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a claim reopened under 38 U.S.C.A. § 5108. Winters v. West, 12 Vet. App. 203 (1999). If new and material evidence has been presented, immediately upon reopening the claim VA must determine whether, based upon all the evidence of record in support of the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that his duty to assist under 38 U.S.C.A. § 5107 has been filled. Id. Available to the RO at the time of the last final decision in September 1996 were the appellant's service medical records, post-service VA medical records, and statements provided by the veteran. The service medical records reveal no medical evidence of schizophrenia, or any other nervous disorder. The December 1974 release from active duty examination is negative for a nervous condition. VA medical records dated from 1980 to 1996 reflect that the veteran was diagnosed with schizophrenia beginning in February 1980. There is no medical opinion in these records, however, that links schizophrenia to his military service. Indeed, according to a September 1983 VA Medical Center discharge report, the veteran reported that he had no psychiatric problems in service. In his statements, the veteran essentially contended that he developed a nervous disorder in service. He believed that an aircraft accident may have triggered his schizophrenia or depression. In this regard, he maintains that while stationed on an aircraft carrier off the coast of Vietnam he witnessed an aircraft crash. He recalled later reporting to sick bay where he was diagnosed with depression. Based on the foregoing evidence, the RO denied the appellant's claim in September 1996, and notified him by letter in October 1996. The basis for the denial was that the veteran had not submitted new and material evidence adequate to reopen the claim for entitlement to service connection for a nervous disorder. For example, he submitted no competent evidence that he developed a nervous disorder in service, or to a compensable degree within one year of discharge. Furthermore, he submitted no competent evidence linking his current schizophrenia, or any other nervous disorder, to service. Evidence received since the September 1996 RO decision includes additional VA outpatient treatment records dated from 1980 to 1989; November 1995 and September 1998 VA Mental Hygiene Clinic records; additional VA outpatient and hospital discharge reports through March 1999; a March 1999 transcript of the veteran's testimony before a hearing officer at the RO; and written statements provided by the veteran. There is no medical opinion linking the veteran's schizophrenia, or any other nervous disorder, to service in the VA outpatient treatment records dated from 1984 to 1989. In the September 1998 VA Mental Hygiene Clinic record, a VA physician indicated that the veteran reported that his mental illness began in 1973. The physician observed that after discharge, the veteran was followed for mental illness. The physician added that he had been following the veteran for the past 20 years for chronic, paranoid schizophrenia. In March 1999, the veteran testified before a hearing officer at the RO. He recounted that in 1975 a doctor at the VAMC in Omaha advised him to have psychiatric treatment, however, he decided not to do it. He implied that the same VA doctor has been treating him since he left service in 1975. He testified that in service, while he served aboard the USS MIDWAY, he developed depression. A doctor on board reportedly told him to keep busy. He did so by focusing on his duties. He indicated that he received combat pay while the USS MIDWAY was stationed off the coast of Vietnam. During this time, around October 1973, he witnessed an aircraft crash on landing, which resulted in seven deaths. After that incident, he recalled that his Commander sent him to sick bay. After service he went to VA for medical and psychiatric care but he refused treatment or analysis prior to 1980. He did not recall receiving treatment from any private medical care providers, except once. In 1979, his employer at the time sent him to a psychiatrist. He did not remember the psychiatrist's name. He did recall that the psychiatrist was an elderly gentleman, and he thought that he may have passed away. The additional VA outpatient records and hospital discharge reports through March 1999 indicate treatment for schizophrenia without providing a medical nexus to service. After carefully considering the evidence submitted since the last final RO decision, in light of evidence previously available, the Board is compelled to find that, while it may be new, it is not material. In this regard, these new records still do not show that he developed a nervous disorder in service or compensably disabling disorder within one year of discharge. Moreover, the medical evidence listed above is cumulative of the evidence of record available in September 1996 that established that the veteran had a nervous disorder, namely schizophrenia, without a nexus to service. That finding remains true today. His testimony and statements, as a lay person, are not competent to diagnose schizophrenia, or any other nervous disorder. Espiritu v. Derwinski, 2 Vet. App. 492 494 (1992). The veteran's claim that a VA doctor told him to get psychiatric treatment in 1975 is not supported by the medical record, and in any event there is no medical evidence that the veteran was treated for a nervous condition within a year from service. Without competent evidence linking his current schizophrenia to service, the Board finds that his testimony is not material to the issue on appeal. In this regard, it must be recalled that a "layman's account of what (a physician) purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). While the appellant and his representative contend that the September 1998 Mental Hygiene record is new and material because it relates a current nervous disorder to within a year of discharge, the September 1998 VA examiner reported only that he had treated the veteran for schizophrenia for the last 20 years. He did not indicate that he treated the appellant within a year of discharge, and simply indicated instead that he began treating the veteran around 1978. Furthermore, the VA doctor did not relate the veteran's schizophrenia, diagnosed more than a year after discharge, or any other nervous disorder to service. Therefore, the Board finds that the September 1998 Mental Hygiene record is not new and material evidence to reopen the claim. The testimony that he receives Social Security benefits and that a private psychiatrist treated him in 1979 is not material because there is no indication that this psychiatrist determined that a nervous disorder was related to the veteran's service. Moreover, there is no proffer of proof that the Social Security records would show that the appellant incurred or aggravated a psychiatric disorder in service, or that a compensably disabling disorder was manifest within a year of separation. Therefore, the veteran has made no showing as to the possible relevance of these psychiatric records, Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and it must be recalled that any "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, this duty is limited to specifically identified documents that, by their description, would be facially relevant and material to the claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Indeed, the veteran testified that the private psychiatrist was probably dead and he could not even remember his name. Where the veteran acknowledges the unavailability of private medical records, the Board is not obligated under the duty to assist to seek them out. See Counts v. Brown, 6 Vet. App. 473, 477 (1994). In any event, for the foregoing reasons, the Board finds that these potential records are not relevant. As the evidence submitted since September 1996 fails to contain evidence of a nervous disorder in service, a compensably disabling psychiatric disorder within one year of discharge, or evidence linking a current nervous disorder to service or an event during service, the evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. Therefore, new and material evidence has not been submitted and the claim must be denied. The Board views its discussion as sufficient to inform the appellant of the elements necessary to reopen his claim. See Graves v. Brown, 9 Vet. App. 172, 173 (1996). In this regard, the above discussion informs the appellant of the steps he needs to fulfill in order to reopen his claim, and an explanation why his current attempt to reopen the claim must fail. Finally, because the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine does not need to be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted to reopen the claim for service connection for a nervous disorder, the appeal is denied. DEREK R. BROWN Member, Board of Veterans' Appeals