BVA9502991 DOCKET NO. 93-12 772 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a psychiatric disability. ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from June 1945 to February 1947. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1992 rating decision of the Louisville, Kentucky, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability. The Board's decision is limited to the issue developed for appellate review. It is unclear from the record, however, whether the appellant intends to raise a claim for entitlement to service connection for post-traumatic stress disorder, as well as entitlement to service connection for residuals of an inservice automobile accident. If so, the appellant should contact the RO, and the RO should then take appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). Furthermore, the appellant has argued in several statements that he should be entitled to service connection based upon aggravation of enuresis. By a rating decision dated in May 1971, service connection for enuresis was denied on the basis that it was a constitutional or developmental abnormality. Therefore, service connection, either directly or based upon aggravation of such disability, is not warranted under VA regulations. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, is essence, that he has submitted new and material evidence to reopen his claim for entitlement to service connection for a psychiatric disability. He argues that he currently suffers from schizophrenia and "spot gazing", which in his opinion, are attributable to a 1947 head injury incurred in a car accident. He asserts that one of his VA physicians questioned him regarding any instances of unconsciouses, which in his opinion, suggested a relationship between the 1947 head injury and his current psychiatric 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 appellant'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 the appellant's claim for entitlement to service connection for a psychiatric disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. By a rating decision dated in August 1980, service connection for a psychiatric disability was denied. The appellant was notified of such decision that month, but did not file a timely notice of disagreement therewith. 3. Additional evidence submitted subsequent to that decision, when viewed in the context of all the evidence, does not present a reasonable possibility of changing the outcome, since it does not tend to show that the appellant incurred a psychiatric disability in service or manifested a psychosis within the one year presumptive period after service. CONCLUSIONS OF LAW 1. Evidence received subsequent to the unappealled rating decision of August 1980, which denied service connection for a psychiatric disability, is not new and material. 38 U.S.C.A. § 5108 (West 1991). 2. The RO's August 1980 decision denying entitlement to service connection for a psychiatric disability is final. 38 U.S.C.A. §§ 1131, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156 , 20.302 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. See Counts v. Brown, No. 91-128 (U.S. Vet.App. May 27, 1994) (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances." ) (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative private medical records, or when evidence already before the board raises sufficient notice of possible probative private medical records). Appellant's service medical records appear relatively complete, and it is not otherwise contended. The evidentiary record contains several references, both in reported medical histories and in the appellant's statements, to private inpatient treatment in or around 1962, at which time the appellant was initially diagnosed with a psychiatric condition. In addition, the appellant has contended that a VA physician from the Evansville, Indiana VA Outpatient Clinic questioned him regarding a history of head injuries or unconsciouses as related to his current medical problem described as "spot gazing." No such private treatment or VA inpatient (IPT) or outpatient treatment (OPT) records are currently associated without the claims folder. However, the appellant has repeatedly stated such 1962 private treatment was the initial treatment for any psychiatric symptomatology which began earlier that year. While the Board concedes that the appellant's current psychiatric disability began in the early 1960's, and the appellant has not alleged any additional relevancy of such private treatment records other than an initial diagnosis and subsequent treatment, the Board finds no necessity to obtain them. Furthermore, the current record contains VA OPT treatment records from the Evansville, Indiana VA Clinic, but such records do not contain any references to a previous head injury or unconsciousness related to the appellant's reported "spot gazing." For the purposes of this appeal, such "spot gazing" will be considered only as it is relevant to the appellant's diagnosed psychiatric disability. As the appellant did not and reportedly cannot provide any dates of treatment for the alleged physician statements, the Board will not conduct a second search for such alleged records. The Board's duty to assist the appellant is not "a license for a fishing expedition," nor is it a "one-way street." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (duty to assist does not extend to determinations of whether "there might be some unspecified information which could possibly support a claim."); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), reconsideration denied, 1 Vet.App. 406 (1991). Therefore, the Board concludes that the service medical records and postservice clinical reports of record are adequate for reaching a fair, well-reasoned determination in this case; and the duty to assist the appellant in the development of facts pertinent to his claim as contemplated by 38 U.S.C.A. § 5107(a) and applicable case law has been satisfied. Service connection for a psychiatric disorder diagnosed as schizophrenia was denied by unappealed rating decision of August 1980. Unappealed rating decisions are final, with the exception that they can be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991). The threshold issue for resolution is whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric disability. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more than evidence which was not previously physically of record; and it must be more than merely cumulative. To be "material", evidence must be relevant and probative to the issue at hand, and create a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Service connection is warranted for a chronic disease or injury, including psychiatric, incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). If a disorder is not shown to be chronic during service, continuity of symptomatology after discharge is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1994). In the case of psychosis, service incurrence may be shown directly or may be presumed if the disease manifested to a degree of 10 percent or more within one year after the date of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Personality disorders as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. 3.303(c) (1994). The evidence which was of record prior to the RO's August 1980 rating decision may be briefly summarized. The appellant's service medical records were negative for complaints, findings or manifestations indicative of a psychiatric disability, and the separation examination conducted in January 1947 disclosed that the psychiatric evaluation was normal. Relevant postservice evidence of record included a June 1947 VA examination; a May 1964 U.S. Government examination report; a May 1969 military examination; a July 1964 VA personnel psychiatric examination; a June 1971 certificate of disability retirement; a September 1971 VA examination; and VA OPT reports from Evansville, Indiana dated from April 1976 to June 1980. Such postservice records indicated that the appellant reported an initial diagnosis and treatment for schizophrenia in 1962, as well as a 1947 head injury. Following a July 1964 fitness for duty mental examination, such schizophrenic diagnosis was confirmed, and the appellant was recommended for disability retirement. During a September 1971 VA examination, the appellant reported that he initially began experiencing insomnia and headaches in 1961, and subsequently developed "spot gazing," described as an uncontrollable urge to stare at fixed objects. Following a special neuropsychiatric examination, such examiner concluded that the appellant continued to suffer from schizophrenic reaction, catatonic type, in partial remission due to medications. Subsequent VA OPT treatment reports indicated continued psychiatric treatment for severe chronic schizophrenia, paranoid type, as well as severe passive dependent personality conflict. Evidence which has come into record subsequent to the August 1980 rating decision includes the following: private treatment records from Harvard Hospital dated in January 1947; a July 1980 statement from Gordon L. Smith, M.D., with an accompanying April 1977 psychiatric examination report; and VA IPT records dated in July 1982. After a review of the record, we find that these additional pieces of evidence are "new" in that they have not been considered before. However, we are of the opinion that the additional evidence is not "material" since there is no reasonable possibility that the additional evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174; Smith v. Derwinski, 1 Vet.App. 178 (1991). While the aforementioned private and VA treatment records indicate that the appellant suffered a head injury during a 1947 car accident, and that he currently suffers from chronic, undifferentiated type schizophrenia, such medical records contain no opinion or conclusion that the appellant's current psychiatric disability was present in service, within one year of service, or is attributable to any inservice event or occurrence. The 1947 private inpatient treatment reports indicate treatment for injuries to the appellant's arm and head following a car accident, with no psychiatric complaints or findings noted or found. Furthermore, both Dr. Smith's 1977 psychiatric examination, conducted in conjunction with an disability income determination from the Social Security Administration (SSA), and the 1982 VA INP treatment reports contain continuing diagnoses of chronic schizophrenia, with a history of psychotic episodes and relevant treatment since 1962, approximately 15 years after separation from service. The Board has considered the appellant's statements alleging headaches and insomnia immediately proceeding the 1947 automobile accident which have continued to date, as well as the reported "spot gazing," which he contends is attributable to the 1947 automobile accident and resulting psychiatric disability. Although the appellant's above mentioned statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability, and cannot serve as a predicate to reopen the appellant's claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992). First, such statements are inconsistent with the medical reports of record indicating the appellant reported the onset of such symptomatology in the early 1960's. In addition, there are no complaints or findings of any psychiatric symptomatology found on the June 1947 VA examination report of record. Furthermore, there is no competent credible evidence revealing an etiological relationship between such reported symptomatology and the appellant's current schizophrenic psychiatric disorder. Since the additional evidence does not suggest that a chronic psychiatric disability was incurred in or aggravated by service, nor does is show that a current psychiatric disability is attributable to such service, there exists no reasonable probability that the new evidence, viewed in the context of all the evidence, would change the outcome. Additionally, in reaching the decision herein, the Board has considered all of the evidence and extended the appellant the benefit of any doubt as mandated by 38 U.S.C.A. § 5107(a) (West 1991). ORDER No new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a psychiatric condition. Therefore, this appeal is denied. 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.