BVA9505943 DOCKET NO. 93-05 060 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from November 1940 to November 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that he has submitted evidence that is new and material to his claim for service connection for a psychiatric disorder. In particular, he contends that he had a psychiatric disorder within the first post-service year, or that he had a pre-existing psychiatric condition that was aggravated in service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 not been submitted to reopen the claim for service connection for a psychiatric disorder. FINDINGS OF FACT 1. Service connection for a nervous (psychiatric) disorder was denied by a decision of the Board in July 1976 on the basis that a psychoneurosis or psychosis was not present in service, a psychosis was not present within the first post-service year, and that any current psychiatric disorder could not be related to service; the Board further found that the veteran had an acute psychotic episode induced by excessive use of liquor and situational stress in September 1946, within one year after service separation. 2. Evidence submitted subsequent to the Board's decision in connection with the attempted reopening of the claim is cumulative or does not bear directly and substantially on whether the veteran's psychiatric disorder is attributable to service. CONCLUSIONS OF LAW 1. The decision of the Board in July 1976 denying the veteran's claim of entitlement to service connection for a psychiatric disorder is final. 38 U.S.C.A. §§ 5107(a), 7104 (West 1991). 2. Evidence received subsequent to the July 1976 Board decision is not new and material, and the veteran's claim for service connection for a psychiatric disorder is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for a psychiatric disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. 3.306(a)(1994). 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. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). In December 1968, the veteran was granted service connection for an anxiety reaction with epileptic personality. The diagnosis was later changed to anxiety reaction with convulsion disorder, then to schizophrenia. However, in June 1975, the regional office (RO) proposed to sever service connection based on the finding that clear and unmistakable error existed in the prior rating decisions, and that a nervous (psychiatric) disorder was not found in service, or within the first post-service year. That rating decision was confirmed by a July 1976 Board decision. That determination included a de novo review and denial of the claim for service connection for a psychiatric disorder on the basis that the veteran's current psychiatric disorder, however diagnosed, was not shown in service or within the first post- service year. The episode in September 1946 was decided to not be evidence of a chronic psychosis, but an acute psychotic episode. Consequently, the Board's decision of July 1976, which denied entitlement to service connection for a nervous (psychiatric) disorder is final. Decisions of the Board are final with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991). The question now presented is whether new and material evidence has been submitted, since the prior adverse decision of July 1976 to permit the reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For the evidence to be new, it must not be cumulative or redundant; to be material, it must be relevant to and probative of the issue at hand; and when viewed in the context of all the evidence, it must raise a possibility of a change in the prior adverse outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991); 38 C.F.R. § 3.156 (1994). Evidence that was previously considered in the July 1976 Board decision includes the veteran's service medical records, various VA examinations, lay statements, a transcript of personal hearing testimony, and the veteran's statements and arguments. The service medical records are negative for any findings of nervousness, mental abnormality, or psychiatric disorder. The first evidence of psychiatric symptomatology is an episode after service, in September 1946, where the veteran was hospitalized for severe convulsions with unconsciousness, incontinence of urine, and bitten tongue and lips. The veteran denied any history of any nervous condition, and admitted to excessive drinking in the preceding few years. The impression was that the veteran had an epileptic personality and had suffered an attack after great emotional strain coupled with intoxication. He was discharged with diagnoses of psychosis intoxication, and pathological intoxication (recovered). VA hospital and outpatient treatment reports for the veteran covering the period September 1948 through 1971 show that the veteran was receiving psychotherapeutic treatment for symptoms of anxiety, depression, nervousness and occasional convulsive attacks. During this period, he received various diagnoses, including conversion reaction, anxiety reaction due to "live long nervousness," anxiety reaction with conversion features, chronic anxiety neurosis, anxiety reaction with epileptic personality, severe manic depression and epilepsy. Progress notes from 1949 reveal that the veteran attributed much of his current anxiety to very harsh treatment as a child by his father and step-mother. On VA psychiatric examination in January 1973, schizophrenia, undifferentiated-type, chronic, was diagnosed. The examiner noted that the diagnosed disorder was a "maturation of a previously found anxiety reaction with conversional and hysterical features." In lay statements from the veteran's wife and a fellow employee, dated in September 1969, they recalled witnessing the veteran's seizures. Five lay statements from potential employers, all dated in April 1972, indicate that they would not hire the veteran due to his nerves and epileptic attacks. In statements submitted from the veteran's wife, she argues that the veteran could not work. The veteran also submitted four lay statements written in July 1975 from fellow servicemen who recalled that the veteran suffered from headaches, dizziness, and nervousness in service. The veteran also testified at a personal hearing in May 1978. His testimony was, in part, that he was not intoxicated in 1946 when he was hospitalized, but had only wanted to leave the hospital. Evidence submitted subsequent to the Board's decision in 1976 includes various lay statements from the veteran's aunt, childhood friends and neighbors who generally describe the veteran as a boy who was treated severely by his father and step- mother, who was "nervous and unstable," "frequently sick," "was always trembling," and that when he returned from the service he was worse, had seizures, and was "like a crazy man." They also stated that they did not know the veteran to drink alcohol. This evidence, although newly submitted, is not new and material to the veteran's claim because, when viewed with all the evidence, does not raise a possibility of a different outcome. One contention inherent in these statements is that the veteran had a pre-existing psychiatric condition that was aggravated in service. That proposition was previously adjudicated. The Board determined that a psychiatric disorder was not incurred in or aggravated by service. There was no basis for a finding of aggravation of a pre-existing disorder. A layman may provide eye-witness account of visible symptoms, but, because that person is untrained in medicine, that person can not offer a diagnosis or medical conclusion that requires medical knowledge; nor can the veteran do so. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). In addition, the veteran submitted VA outpatient records, including treatment in a mental hygiene clinic, from February 1986 to January 1987, and September 1989 to September 1992, and private treatment records from R. A. Mena, M.D., from September to October 1992. These records reflect only current treatment of the veteran's psychiatric condition, do not contain any evidence inconsistent with previous records, and thus are cumulative. In addition, the Court of Veterans Appeals has stated that current treatment records many years after service which do not relate the current condition to service are not new and material evidence. Cox v. Brown, 5 Vet. App. 97 (1993). Also of consideration is the transcript of the veteran's personal hearing held in October 1992. The veteran testified that he had nervous convulsions in service (Transcript (T) at page 2), that he has been taking medication and receiving treatment for his condition since service (T at 6), has been receiving treatment since after service in 1946 (T at 6), that he has never taken alcohol (T at 4), and that he lied when he told the doctors in 1946 that he had been drinking (T at 3-4) because he feared institutionalization. The veteran's wife also testified that since July 1946, when she first met the veteran, she had never known him to drink any alcohol. This hearing evidence is also cumulative in that the allegations of being treated for headaches and nervousness with aspirins in service (raised in previous lay statement from fellow servicemen), and his and his wife's contention that he was not intoxicated in 1946 (raised in the veteran's hearing testimony in 1978) have been previously before the Board and considered in the prior final decision. In that the testimony is cumulative, it is not "new." As to testimony of treatment or behavior after service, it is not material to the issue of whether a psychiatric disorder was incurred or aggravated in service. In that none of the evidence submitted since the prior final Board decision of July 1976 is new and material to the veteran's claim for service connection for a psychiatric disorder, the claim is not reopened. ORDER New and material evidence to reopen the veteran's claim for service connection for a psychiatric disorder has not been received, and the appeal is denied. WILLIAM J. REDDY 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.