Citation Nr: 0004398 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-20 527 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from May 1959 to May 1963. In April 1991, the Board of Veterans' Appeals (Board) determined that an October 1977 RO rating decision, determining that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disability, was final and that a new factual basis had not been established as to warrant granting service connection for a psychiatric disability. In 1994, the veteran submitted an application to reopen the claim for service connection for a psychiatric disability. This appeal comes to the Board from August 1994 and later RO rating decisions that determined there was no new material evidence to reopen the claim. FINDINGS OF FACT 1. In April 1991, the Board determined that an October 1977 RO rating decision, determining that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disability, was final and that a new factual basis had not been established as to warrant granting service connection for a psychiatric disability. 2. Evidence received subsequent to the April 1991 Board decision is not of such significance that it must be considered in order to fairly decide the merits of the claim for service connection for a psychiatric disability. CONCLUSIONS OF LAW 1. The April 1991 Board decision, determining that an October 1977 RO rating decision, determining that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disability, was final and that a new factual basis had not been established as to warrant granting service connection for a psychiatric disability, is final. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence has not been received to reopen the claim for service connection for a psychiatric disability. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Where a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war, campaign or expedition, the VA Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reason for granting or denying service-connection in each case shall be recorded in full 38 U.S.C.A. § 1154(b) (West 1991). In this case, the evidence does not show that the veteran engaged in combat with the enemy. Hence, the provisions of this statute are not for application. The April 1991 Board decision determined that an October 1977 RO rating decision, determining that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disability, was final and that a new factual basis had not been established as to warrant granting service connection for a psychiatric disability. A decision of the Board is final with the exception that a claimant may later reopen a claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.160(d), 20.1100 (1999). The question now presented is whether new and material evidence has been submitted since the Board's adverse April 1991 decision to permit reopening of the claim for service connection for a psychiatric disability. 38 C.F.R. 3.156(a) (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must bear directly and substantially upon the specific matter under consideration (here, whether it shows the presence of an acquired psychiatric disability in service, the presence of a psychosis to a compensable degree within the first post- service year or shows that a current psychiatric condition is causally related to an incident of service). A determination by VA that information constitutes "new and material evidence" means that the new information is significant enough, either by itself or in connection with evidence already of record, that it must be considered in order to fairly decide the merits of a claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Following the Federal Circuit's decision in Hodge, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court) had the opportunity to discuss the relationship between determinations of new and material evidence to reopen and those of well-groundedness. Elkins v. West, 12 Vet. App. 209 (1999). The Court also noted that, in rejecting the Colvin reasonable-possibility-of-outcome-change test, Hodge effectively decoupled the existing relationship under the Court's case law between determinations of well- groundedness and of new and material evidence to reopen. Prior to Hodge, no opinion of the Court ever suggested that evidence that was sufficient to reopen might not be sufficient to well ground a claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993) (quoting Gober v. Derwinski, 2 Vet. App. 470, 472 (1992)) (new and material evidence "is, by its nature, well[]grounded"); Robinette v. Brown, 8 Vet. App. 69, 76 (1995) (a lower evidentiary threshold is applicable to determining whether a claim is well grounded); Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (the difference, if any, between the evidence necessary to present a well-grounded ("plausible") claim and that needed to satisfy the third new-and-material evidence requirement ("reasonable possibility") is slight). Consequently, if upon remand the Board determines that new and material evidence has been presented, it next must determine, as part of its "review [of] the former disposition of the claim" under section 5108, whether the veteran's claim, as then reopened, is well grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. In this regard, the Court noted that, as outlined in Winters v. West, 12 Vet. App. (1999), issued by the Court concurrently with the Elkins opinion, if the Court on review of all the evidence of record in support of the claim were to determine that the veteran's underlying claim was not well grounded, the Court would not remand for the Board to apply 38 C.F.R. § 3.156(a) and Hodge because the failure to apply the regulation under such circumstance would not be prejudicial to the veteran. The evidence of record at the time of the April 1991 Board decision consisted of testimony and statements from the veteran to the effect that his psychiatric disability had its onset in service; reports from psychologist who treated the veteran from December 1964 to May 1977 for a psychoneurosis, including the opinion of a psychologist that the veteran's psychiatric condition could have begun in service; a report from psychiatrists who treated the veteran for a psychosis in the 1980's; and service medical records that did not show the presence of a psychiatric disability. Since the April 1991 Board decision various evidence has been submitted, including statements and testimony from the veteran to the effect that his psychiatric disability began in service. This evidence is redundant of evidence of record in April 1991 and not new. Statements from an acquaintance and relative of the veteran, and county documents were received to the effect that the veteran had mental problems after separation from service. This evidence is similar or cumulative to evidence of record in April 1991 that shows the veteran had mental problems shortly after separation from service, and not new. Service documents were also received regarding the veteran's service. These documents are duplicates of evidence of record in April 1991 or not of such significance that they must be considered in order to fairly decide the claim for service connection for a psychiatric disability because they do not show the presence of such disability. Hence, these documents are not new and material. 38 C.F.R. § 3.156(a); Hodge, 155 F. 3d 1356. The evidence received since the April 1991 Board decision also includes a private medical report of the veteran's psychiatric examination in November 1964 noting that he was emotionally disturbed. This evidence is not new and material because it is similar to evidence of record that showed he was treated for a psychoneurosis in December 1964 and it only tends to show that he was "emotionally disturbed" at a point more than one year after separation from service. Nor does this evidence tend to show that the veteran's mental problems were related to service. White v. Brown, 6 Vet. App. 247 (1994). After consideration of all the evidence received since April 1991 the Board finds that it is not of such significance that it must be considered to fairly decide the claim for service connection for a psychiatric disability. Hence, the Board finds that there is no new and material evidence to reopen the claim for service connection for a psychiatric disability. As no new and material evidence has been submitted, there is no basis to reopen the claim for service connection for a psychiatric disability, and the April 1991 Board decision remains final. ORDER The application to reopen the claim for service connection a psychiatric disability is denied. J. E. Day Member, Board of Veterans' Appeals