BVA9503842 DOCKET NO. 93-05 427 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from October 1971 to October 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 1992 decision by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO), which found that no new and material evidence had been presented to reopen a claim for service connection for a psychiatric disorder, to include PTSD. The case was remanded by the Board to the RO in November 1993 for the purpose of scheduling a hearing for the veteran. That hearing was held at the RO in January 1994. The case was returned to the Board in January 1995. In his substantive appeal, the veteran indicated that he was seeking service connection for syphilis. An RO decision in May 1987 denied service connection for that disability. That decision was not appealed and became final. It is not clear, but the veteran may be seeking to reopen his claim. Since this matter has not been addressed by the RO or developed for appellate consideration and is not intertwined with the current appeal, it is referred to the RO for clarification and any appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended on behalf of and by the veteran, in essence, that his psychiatric disorder, to include PTSD, either began during active service or is the result of stressful events he was exposed to while on active duty in Vietnam. The veteran states that his psychiatric or nervous symptoms began when he was sent to Vietnam. He alleges that someone "slipped some dope on me" and helped cause this problem. He also claims that, while in Vietnam, he drank wine and tea that contained razor blades, and used drugs that exacerbated his nervous disorder. He further contends that he was treated for a nervous condition during service and shortly after his separation from active duty. It is argued on his behalf that his testimony presented at a January 1994 RO hearing constitutes new and material evidence within the meaning of the applicable law and regulations. It is also requested that the veteran's service administrative records and any State Department records pertaining to his assignment to the United States Embassy in Saigon that may be available be obtained. 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 no new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder, to include PTSD. FINDINGS OF FACT 1. In a Board decision entered in January 1990, service connection for a psychiatric disorder, to include PTSD, was denied. 2. The only evidence received subsequent to the January 1990 Board decision, a transcript of hearing testimony presented by the veteran in January 1994, is either redundant and cumulative of evidence earlier on file, or not relevant and probative, and when considered in the context of evidence earlier of record, raises no reasonable possibility of a change in the January 1990 Board decision. CONCLUSION OF LAW The additional evidence received subsequent to the January 1990 Board decision, which denied service connection for a psychiatric disorder, to include PTSD, is not new and material; the claim is not reopened, and the January 1990 Board decision is final. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION RO decisions in May 1976, August 1979, June 1983, and March 1987 denied the veteran's claims for service connection for schizophrenia or PTSD. Those decisions were not appealed and became final. In January 1990, the Board denied service connection for a psychiatric disorder, to include PTSD. While that decision addressed the finality of the prior RO decisions, it also specifically addressed the merits of the claim, based on the entire record. As such, it is the "last final denial of the merits" and is the proper point of reference for an analysis of the application to reopen. See Glynn v. Brown, 6 Vet.App. 523 (1994). A decision of the Board is final, with the exception that a claim may later be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. The question now before the Board is whether new and material evidence has been presented, since the Board's adverse January 1990 decision, to permit reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant of evidence previously of record. For evidence to be deemed material, it must be relevant and probative to the issue at hand and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence on file at the time of the January 1990 Board decision included service medical records, including a report of a separation examination, which were negative for any findings indicative of a psychiatric disorder, including PTSD; a report of a VA compensation examination of the veteran performed in May 1974, which was negative for any pertinent findings; clinical records pertaining to VA psychiatric treatment of the veteran in 1976, including a hospitalization from March to July 1976, which shows that he was diagnosed with schizophrenia; subsequently dated clinical records, including discharge summaries of numerous hospitalizations, which confirm a diagnosis of schizophrenia; statements submitted by the veteran's brother and received by the RO in 1980-81; service personnel records, which show that the veteran served as a rifleman in Vietnam and participated in the defense of the American Embassy in Saigon; and a transcript of personal hearing testimony presented by the veteran at the RO in March 1989. Evidence received since the January 1990 Board decision consists of a transcript of testimony presented by the veteran at the RO in January 1994. He testified at that time that his only life- threatening incident in Vietnam involved "cowboys" who threatened to attack him. He recalled having nerve problems while on active duty. He described episodes of drug use and treatment for nonpsychiatric disability during service. The veteran further testified that he has received treatment for a speech defect and a nervous condition during the years following service, including shortly after his separation from active duty. He described nightmares of having sex with animals. He also indicated that he avoided Oriental people. He said that he was on several psychiatric medications. His service representative pointed out that the veteran was a rifleman in Vietnam and participated in the defense of the American Embassy in Saigon. The representative also indicated that he would contact sisters of the veteran for the purpose of obtaining relevant information pertaining to the veteran's post-service psychiatric treatment. In a VA Report Of Contact dated in March 1994, a Hearing Officer informed the veteran's representative that, in October 1975, the RO contacted the VA Medical Center (VAMC) in Los Angeles, California, for the purpose of obtaining treatment records of the veteran, but the only records that were obtained were dental records (A record of the VAMC's response confirming this is on file.) It was noted that the representative wanted to contact the veteran's sisters again on this matter. No additional evidence, including treatment records, was submitted in support of the veteran's application. In reviewing the only additional evidence received subsequent to the January 1990 Board decision, I find that most of the veteran's testimony pertaining to his alleged psychiatric symptoms and treatment during service and shortly after his separation from active duty, is not new evidence since he made the same basic assertions prior to the 1990 Board decision. Reid v. Derwinski, 2 Vet.App. 312 (1992). His remaining testimony regarding an alleged life-threatening incident in Vietnam when he was threatened by "cowboys" and his statements pertaining to alleged post- service psychiatric symptomatology and treatment are not material evidence because, when considered in the context of evidence earlier of record, they raise no reasonable possibility of a change in the prior Board decision. In support of this latter conclusion, I note that the veteran's statements are merely allegations that are not supported by competent evidence. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Moreover, he has presented no competent medical evidence of causation to link remote incidents of service and his psychiatric disability first shown many years later. Grottveit v. Brown, 5 Vet.App. 91 (1993); Grivois v. Brown, 6 Vet.App. 136 (1994). He has presented no evidence of medical causality between his service and his psychiatric disability. I have considered his testimony on the contended causal relationship, but as a layman, he is not competent to offer evidence that requires medical knowledge, such as an opinion on medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). As far as his alleged PTSD is concerned, there is no medical evidence establishing a clear diagnosis of the condition, nor is there any credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). In summary, I find that the evidence received subsequent to the January 1990 Board decision sheds no new light on the veteran's claim. The additional evidence is not new and material within the meaning of the cited legal authority. It follows that the veteran's claim for service connection for a psychiatric disorder, to include PTSD, is not reopened, and the January 1990 Board decision remains final. (CONTINUED ON NEXT PAGE) ORDER The application to reopen a claim for service connection for a psychiatric disorder, to include PTSD, is denied. J. E. DAY 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.