BVA9504047 DOCKET NO. 94-45 638 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from June 1943 to November 1944 and from January to April 1953. The appeal arises from a May 1990 rating decision in which the Regional Office (RO) essentially concluded that evidence sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include post- traumatic stress disorder, had not been received. The veteran filed a notice of disagreement in July 1990. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that service connection for entitlement to service connection for an acquired psychiatric disorder is warranted. He asserts that such a disorder was manifested during service but not correctly diagnosed. He also maintains that he has post-traumatic stress disorder as a result of a ship explosion that occurred during service. Finally, the veteran's representative has requested that the veteran be afforded another VA psychiatric examination and that the case be referred to an independent medical expert for review. 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(s). 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 received to reopen a claim for entitlement to service connection for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. FINDINGS OF FACT 1. A rating decision dated in September 1968 reopened the claim for entitlement to service connection for a neuropsychiatric disorder and denied service connection for said disorder, and the veteran did not perfect his appeal of that decision. 2. Additional evidence received after the September 1968 rating decision includes a diagnosis of post-traumatic stress disorder and the opinions of psychiatrists which attribute the veteran's psychiatric disorder to service. 3. The additional evidence includes information which was not of record in September 1968 and which is relevant and probative and when viewed in the context of all the evidence presents a reasonable possibility of changing the outcome of the case. CONCLUSION OF LAW The evidence received since the rating decision in September 1968 which denied service connection for an acquired psychiatric disorder is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Unappealed rating decisions in June 1945, September 1952 and Board decisions dated in July 1958 and April 1962 denied service connection for an acquired psychiatric disorder. A September 1968 rating decision referred to the veteran's claim for entitlement to service connection for a nervous condition as reopened. Notice of said decision and of the veteran's appellate rights was sent to him in September 1968, and a notice of disagreement was received later that month. A statement of the case was issued in October 1968. However, a timely substantive appeal was not received in order to perfect the veteran's appeal of the September 1968 rating decision. Therefore, that decision is final. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. §§ 20.302(b), 20.303. In February 1980, the Board issued a decision finding that prior Board decisions in 1958 and 1962 were final. In a rating decision dated in May 1985, the RO denied service connection for post- traumatic stress disorder. In a letter dated in May 1985, the RO informed the veteran's that his "reopened" claim for service connection for post-traumatic stress disorder had been denied. However, in a VA Form 21-4138 (Statement In Support Of Claim) received in June 1985, the veteran responded to the May 1985 RO's letter by relating that he had not intended to file a claim for service connection compensation. According to the veteran, he had intended to file a claim for nonservice connected pension benefits. Under the circumstances and in fairness to the veteran, the Board finds the May 1985 rating decision which reopened the claim for entitlement to service connection for an acquired psychiatric disorder is not final. Therefore, it appears that the last RO or Board decision to consider the claim for entitlement to service connection for acquired psychiatric disorder on a de novo basis was the Board decision in April 1962 which denied service connection for a neuropsychiatric disorder and that decision is final. However, if the veteran submits new and material evidence, the claim for entitlement to service connection for acquired psychiatric disorder may be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Also, the VA views the claim for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, as a petition to reopen the claim for service connection for neuropsychiatric disorder. The evidence of record in September 1968 may be summarized. The service medical records show that the veteran was diagnosed with inadequate personality and psychoneurosis in June 1944. In August 1944, the diagnosis was changed to mental deficiency, moron. Service medical records pertaining to the veteran's second period of service show that the veteran was diagnosis with anti-social personality in February 1953. A VA medical certificate dated in August 1952 and VA hospital records dated from May to July 1957 include a diagnosis of anxiety reaction. The conclusion of a VA examiner in October 1952 was that the veteran was a mentally deficient man. At a RO hearing in March 1958, the veteran testified that he became very nervous with stomach complaints after a ship explosion in service. The veteran presented similar testimony at a Board hearing in June 1961 and RO hearings in October 1961 and June 1968. In a January 1961 letter, a county social worker related that the veteran was disabled on the basis of a life long personality disorder with neurotic reaction. In a letter dated in February 1966, an English professor related his impression that the veteran had above average intelligence. A VA psychiatrist diagnosed schizophrenic reaction in July 1968. According to a VA psychologist in August 1968, the veteran was functioning at the average level of intelligence. The additional evidence received since April 1962 when the Board denied service connection for an acquired psychiatric disorder includes transcripts of various hearings at the RO and the Board, letters and medical records from private physicians, reports of VA psychiatric examinations and VA outpatient treatment records. New evidence is more than evidence which was previously physically of record. To be new evidence, evidence must be more than cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Also, additional evidence, which is presumed credible for the purposes of evaluating whether evidence is new and material, must also be relevant and probative. Justus v. Principi, 3 Vet.App. 510 (1992). Smith v. Derwinski, 1 Vet.App. 178 (1991). In letters dated in December 1984, Robert J. Brown, M.D., noted that the veteran's history strongly suggested post-traumatic stress reaction. Thus, the additional evidence shows that the veteran has been diagnosed with post-traumatic stress disorder, a diagnosis which was not of record in September 1968. Dr. Brown also related that the post-traumatic stress reaction was probably secondary to explosions which occurred in service. In a letter dated in November 1979, Warren C. Johnson, M.D., reported that the veteran's psychoneurosis developed in June 1943 and was present in 1979. Thus, both Dr. Brown and Dr. Johnson have attributed the veteran's psychiatric disorder to service. Medical opinions such as those of Dr. Brown and Dr. Johnson were not of record when the Board denied the claim for entitlement to service connection for an acquired psychiatric disorder in 1962. Thus, the additional evidence received since the September 1968 rating decision includes evidence which is new. Also, the new evidence is relevant and probative as to the issue of entitlement to service connection for an acquired psychiatric disorder and when viewed in the context of all the evidence, both new and old, presents a reasonable possibility of changing the outcome of the case. Colvin, 1 Vet.App. 171; Smith, 1 Vet.App. 178. Accordingly, the Board finds that the September 1968 rating decision denying service connection for an acquired psychiatric disorder is not final and that the claim for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, has been reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). ORDER The petition to reopen the claim for entitlement to service connection for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is granted. REMAND The Board may not address in a decision a question that has not been addressed by the RO when the veteran has not been given adequate notice to respond and may thereby be prejudiced. Bernard, 4 Vet.App. 384. To ensure that the veteran is not prejudiced in this case, the RO should consider the claim for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder in light of all the evidence of record, both new and old. To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: The RO should consider the claim for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, in light of all the evidence of record. If the RO continues to deny the claim, the veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. LAWRENCE M. SULLIVAN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). 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.