BVA9501285 DOCKET NO. 93-11 447 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The appellant served on active duty in the United States Navy from July 1973 to January 1976. This appeal arises from an August 1991 decision of the Department of Veterans Affairs (VA) Boston, Massachusetts, Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for and acquired psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL In essence, it is maintained by and on behalf of the appellant that he developed a nervous disorder during service. It is averred that service connection is warranted for the disability. 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 new and material evidence has not been submitted to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The RO denied entitlement to service connection for an acquired psychiatric disorder in March 1982. 3. The evidence submitted since the 1982 RO decision does not show the development of an acquired psychiatric disorder as a result of military service. CONCLUSIONS OF LAW 1. The evidence received since the RO denied entitlement to service connection for an acquired psychiatric disorder is not new and material and the claim for service connection for an acquired psychiatric disorder has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The decision of the RO in March 1982 denying service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, 7105 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for an acquired psychiatric disorder was previously denied by the RO in March 1982. The veteran was notified of the decision by the RO in a letter dated in April 1982. The letter informed the veteran of his appellate rights. He did not file a timely appeal. Received in March 1991 was the request to reopen the claim for service connection for an acquired psychiatric disorder. ...when a veteran seeks to reopen his or her claim under [38 U.S.C.A.] section 5108, the BVA must conduct a two-step analysis. First, the Board must determine whether the evidence submitted since the previous BVA decision is "new and material." Second, if the evidence is found to be new and material, the claim is to be reopened and the Board must then "assess the new and material evidence in the context of the other evidence of record and make new factual determinations." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991) and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)). In undertaking this "two-step" process, the Board must compare the medical evidence considered in the 1982 RO decision with the evidence submitted since that time. At the time of the 1983 RO decision, the veteran's service medical records were considered. On the basis of this evidence , the RO concluded that the veteran manifested a passive-aggressive personality, a personality disorder considered to be a developmental disorder for which service connection was precluded. Evidence received subsequent to the March 1982 RO decision includes: A report of a VA hospitalization from December 1981 to February 1982 reflecting for treatment of a mixed personality disorder (schizotypal plus borderline), with a history of polysubstance abuse; previously considered service medical records; a report of a VA hospitalization from February 1982 to December 1982 for treatment of paranoid schizophrenia and a mixed personality disorder; a report of a VA hospitalization from October to November 1990 for treatment of polysubstance abuse (alcohol, cocaine), a VA hospitalization discharge summary reflecting hospitalization from November 1990 to February 1991 for treatment of cocaine and alcohol dependence, with a probable borderline personality disorder and an antisocial personality disorder; a report from the National Center for PTSD, reflecting that in April and May 1991, the veteran did not meet the criteria for a diagnosis of PTSD, but met the criteria for alcohol and opioid dependence and mixed personality; and the transcript from a hearing held before a hearing officer at the RO in August 1992. Having reviewed the evidence associated with the claims folder since 1982, it is concluded that the evidence is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). Accordingly, the RO's 1982 decision remains final. 38 U.S.C.A. § 7105 (West 1991). New evidence is not that which is merely cumulative of other evidence on record. Material evidence is relevant and probative of the issue at hand. However, not every piece of new evidence, even if relevant and probative, will justify a reopening of the claim because some evidence is of limited weight and thus is insufficient to justify a new hearing. The 'bright line' rule in other federal courts is that to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The report of VA hospitalization from December 1981 to February 1982 reflecting for treatment of a mixed personality disorder (schizotypal plus borderline), with a history of ploysubstance substance abuse made no reference to the veteran's time in service. The records concerning his VA hospitalization from February 1982 to December 1982 are likewise negative for references to an acquired psychiatric disorder in service. The veteran continued to have problems avoiding substance abuse and was once again hospitalized at a VA facility from October to November 1990, and again from November 1990 to February 1991. At no time was reference made to an acquired psychiatric disorder being present in service. The report from the National Center for PTSD failed to associated the veteran's present psychiatric problems with military service; suggesting instead that they were related to alcohol and polysubstance abuse. Finally, the transcript from the appellant's August 1992 hearing at the RO has been reviewed. Therein, the veteran described his depression onboard ship, the noise and crowded conditions. Transcript, hereinafter Tr. 2. He described his attempts at suicide, and his high school days as an honor student. Tr. 5. He related that his problems caused him to self-medicate by using illegal drugs and alcohol. Tr. 8. He described his duties in the navy when the ship was dry-docked. Tr. 9. Having reviewed the recently submitted evidence, it is concluded that, for the most part (with the exception of the previously considered service medical records), the evidence is new, inasmuch as it is not cumulative of evidence considered in the 1982 RO decision. However, it is not material to the appellant's claim, as it is not relevant and probative of the issue at hand; that is, whether the veteran developed an acquired psychiatric disorder as a result of military service. Evidence contemporaneous with the veteran's period of service would be of more probative value. The additional evidence contains no confirmatory or objective proof that the veteran developed an acquired psychiatric disorder as a result of service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. To conclude, in the absence of new and material evidence, this claim may not be reopened. ORDER New and material evidence not having been submitted, the claim for entitlement to service connection for an acquired psychiatric disorder is not reopened, and the benefit claimed is denied. RENÉE M. PELLETIER 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.