BVA9504971 DOCKET NO. 93-10 763 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from May 1945 to November 1946. In a decision dated in September 1982, the Board of Veterans' Appeals (Board) denied entitlement to service connection for a psychiatric disorder. Examination of the Board's findings and discussion in 1982 shows that the claim was considered on the merits, based on all of the evidence of record. The Board's 1982 decision represented the last final denial of the merits of this claim. See Glynn v. Brown, 6 Vet.App. 523 (1994). Subsequent Board decisions of this claim in 1984 and 1989 were decided on the regulatory basis applicable to finally denied claims. Additional treatment records, including 1965 private hospitalization records showing the diagnosis of schizophrenic reaction, were received at the Board in May 1993, but such records are cumulative and consistent with previously submitted evidence. For these reasons, such evidence will not be referred to the regional office for initial review. 38 C.F.R. § 20.1304(a)(c) (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his psychiatric disorder first became manifest in service. In May 1992 he characterized this disorder as a seizure disorder and in May 1993 he called it an anxiety reaction. A May 1993 representative's statement related the veteran's claim that he sustained a head injury in a jeep accident in World War II, causing a seizure disorder and a nervous condition. 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 received to reopen the claim. FINDINGS OF FACT 1. Service connection was denied for a psychiatric disorder by the Board in September 1982. 2. The evidence and contentions submitted since the September 1982 Board decision pertinent to a psychiatric disorder are duplicative or cumulative, or not so significant that they must be considered in order to decide the merits of the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen a claim of service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The September 1982 Board decision which denied service connection for a psychiatric disorder is final, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Where a veteran served for 90 days or more during a period of war, and a psychosis including schizophrenia develops to a degree of 10 percent or more within one year from date of service separation, then such disease may be service connected even though there is no evidence of such disease in 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). A decision of the Board is final and may not be reopened without the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b). When a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made. 38 U.S.C.A. § 7104(b). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. The evidence available at the time of the 1982 Board decision indicated that the veteran was normal in pertinent respects at service induction. In September 1946, the veteran had an episode characterized by lying on his back, shivering, and staring without speaking. Another patient reported that the veteran had vomited several times and then passed out several hours after that. The veteran was hospitalized, and a few days later, had another "attack." It was noted that his whole body shook on this occasion and that he improved with injection of sterile water almost immediately. On questioning, it was apparent that he feared telling his uncle that he no longer wished to pursue a beautician course for which the uncle was sponsoring him. The final diagnosis was psychoneurotic disorder, acute, mild intensity, due to situational maladjustment, with a somatic reaction. At separation examination in October 1946, the psychiatric and neurological diagnoses were normal and no pertinent complaint was noted. In November 1946, the veteran claimed service connection for "fainting spells," first noted in September 1946, of undetermined cause. Department of Veterans Affairs (VA) physical examination in July 1949 revealed no pertinent complaints or findings. The veteran was admitted on an emergency basis for psychiatric reasons to Grasslands Hospital on December 26, 1954. A VA medical certificate dated in January 1955 shows a diagnosis of schizophrenic reaction, acute undifferentiated type, and noted that an electroencephalogram (EEG) had been mildly abnormal. Grasslands Hospital, and then Harlem Valley State Hospital, treated the veteran the same month, and at the latter institution the diagnosis was said to be dementia praecox, catatonic type. Records of Harlem Valley State Hospital dated from January 1955 to September 1956, but received after the 1982 Board decision, indicate that in a history taken in July 1955, the veteran, when asked about head injuries, reported that as a child he was hit on the right side of his head with a baseball. He reported no other head injuries. VA neuropsychiatric examination in February 1956 showed a diagnosis of schizophrenic reaction in full remission. The veteran underwent VA hospitalization from May to August 1965 for schizophrenic reaction, paranoid type. In January 1966, a VA neuropsychiatric examiner repeated the 1946 service incident of acute psychoneurotic disorder, and noted: Based on the symptomatology, it is very probable that this condition represented the initial stage of the later diagnosed, Schizophrenic reaction. It cannot be ruled out also that his claim on discharge of "dizzy spells" represented some symptom indicating a schizophrenic process in its very early development, manifested by odd somatic symptoms. The diagnosis was schizophrenic reaction, in fair remission. VA neuropsychiatric examination September 1968 showed a diagnosis of schizophrenic reaction, paranoid type. VA neuropsychiatric examination in March 1974 revealed a diagnosis of chronic undifferentiated schizophrenia. Thereafter, the veteran received VA outpatient treatment which essentially confirmed and continued this diagnosis, as well as other diagnoses including personality disorder and conversion disorder. At VA hospitalization in March 1982 the veteran complained of "seizures" since 1945, but no true seizure activity was diagnosed. It was noted that a computerized axial tomography and an EEG had been normal, as had a thorough study of his complaints by the Medicine service. The seizures were characterized by such signs and symptoms as right hemiparesis of the face but not the torso, speaking out of the left side of the mouth with occasional recourse to the right, falling, gently, to the floor, and seeing the Lord on the floor. He also reported seeing the Virgin Mary in service. The hospital examiners felt that he had pseudoseizures. It was remarked that these occurred during group therapy and when the veteran was approached by a staff member, and decreased when the veteran was told that he was recommended for full service connection. This recommendation was based on the finding that it would be more economical to pay him than to continue constant probing into physical problems in order to explain his nonorganic "seizures." The diagnoses were conversion disorder and dependent personality. In September 1982, the Board denied service connection for a psychiatric disorder based on findings that the psychoneurotic disorder in service was acute and transitory and had resolved by service separation, and that a psychosis was first shown years after service and was not related to service. Evidence received after the Board's 1982 decision includes a reproduction of a photograph of a jeep which had apparently been involved in a collision, and which collision the veteran asserts led to mental and seizure disorders. In November 1982, he submitted a report of accidental injury in September or October 1946 when he was delivering mail and he allegedly passed out while driving. When asked to describe his injuries, he wrote that he could not respond to this question because he was unconscious at the time. In October 1983, the veteran testified at a personal hearing regarding this claim, which hearing was adjourned after a short time because the veteran, according to the hearing transcript, had a "reaction." His testimony prior to the adjournment was essentially that he had "crashed" a jeep in service and that he had his first seizure in service. The veteran continued to receive VA outpatient treatment reflecting the mental health diagnoses identified above, among others. This treatment revealed no clear seizure disorder diagnosis. At VA hospitalization in October 1983, the diagnoses were conversion reaction and atypical depression. VA hospitalization in December 1984 revealed a pertinent diagnosis of pseudoseizures. The veteran has also submitted duplicate copies of various medical records, in particular, records of the 1966 VA examination report wherein the examiner stated that it was very probable that based on the veteran's symptoms, his schizophrenic reaction had its initial stages in 1946 in service. The Board has considered whether the evidence received since the 1982 Board decision is new and material, and the sole question raised by this appeal is whether such evidence is new and material. The evidence received after the 1982 rating decision is duplicative or essentially shows that the veteran's schizophrenia progressed and has been treated, which is cumulative, with the addition of several other mental health diagnoses many more years after service. No additional evidence has been received to show the incurrence of a chronic psychiatric or a seizure disorder during service, or the development of any psychosis to a compensable degree within one year after separation. The veteran, as a layman, is not qualified to render an opinion on the onset of his mental disorders, which opinion would require medical knowledge. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The additional evidence is not so significant that it must be considered in order to decide the merits of the claim, and, therefore, is not new and material. The Board appreciates that the veteran wishes that the opinion of the 1966 VA examiner had been found more probative when it was considered by the Board in its 1982 decision. However, resubmitting duplicate copies of this evidence does not make such evidence new and material. The Board has considered the veteran's argument that he is entitled to service connection based on a psychiatric or a seizure disorder developing due to head trauma in a service jeep accident. However, the service records are devoid of mention of such accident, and nothing in the additionally received evidence suggests that service doctors were not able to accurately assess the veteran's health status. Although some evidence contains a history of trauma to the veteran's nose in service, the medical evidence does not relate the current psychiatric disorder to any trauma in service. For the same reason, the Board also finds insignificant the later report of having seen the Virgin Mary in service. The Board is unwilling to find the testimony and arguments, alone, so significant that they must be considered in order to decide the merits of the claim. ORDER New and material evidence not having been received to reopen the claim for service connection for an acquired psychiatric disorder, the claim remains 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.