BVA9504648 DOCKET NO. 92-17 011 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a personality disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for neck and back disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from June 1981 to July 1983. This appeal arises from an April 1992 rating decision of the Nashville, Tennessee, Regional Office (RO). That rating decision held that the veteran had not submitted new and material evidence to reopen his claims for service connection for neck, back and psychiatric disorders. A hearing was held at Nashville, Tennessee, in September 1992 before Jan Donsbach, who is the member of the Board of Veterans' Appeals (Board) rendering this decision and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In April 1993, the Board remanded the case to the RO for further development. Subsequently, a July 1994 rating decision again held that the veteran had not submitted new and material evidence to reopen his claims for service connection for neck, back and psychiatric disorders. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has chronic back and neck disabilities as the result of injuries during service. He also contends that he is entitled to service connection for a personality disorder which was first diagnosed in service. He specifically contends that he has submitted new and material evidence to reopen his claims for service connection for personality, back and neck disorders. His representative requests that all reasonable doubt be resolved in the veteran's favor. 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 claims of entitlement to service connection for neck, back and personality disorders. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The RO, by decision dated in June 1984, denied service connection for neck, back and personality disorders. The veteran did not file a timely appeal and the decision became final. 3. The evidence added to the record since the RO's decision in June 1984 is either cumulative in nature or when viewed in the context of all records on file, it does not present a reasonable possibility of changing the outcome of the previous claim. 4. The veteran is not a credible witness. CONCLUSION OF LAW The RO denied entitlement to service connection for neck, back and personality disorders in June 1984; new and material evidence has not been submitted, and the veteran's claims for those benefits have not been reopened. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In June 1984, the RO denied service connection for back, neck and personality disorders on the basis that any neck and back injuries in service were acute and transitory and that personality disorders were not disabilities for which service connection could be granted. A timely appeal was not made following notification and the decision became final. To reopen the claim, the veteran must submit new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). New evidence means more than evidence which was not previously of record. To be "new" additional evidence must be more than merely cumulative. The additional evidence must also be "material." That is, it must be relevant and probative and there must be a reasonable possibility that, when viewed in the context of all the evidence, both new and old, the additional evidence would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156(a) (1994). For service connection to be granted, the law requires that there be a disability and the disability result from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). Regulations also provide that 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). A personality disorder is not a disability for which VA benefits may be granted. 38 C.F.R. § 3.303(c) (1994). When the claim was previously denied, there was no showing that the veteran had a chronic neck or back disorder which had been incurred in service or any chronic acquired psychiatric disorder which was incurred in service. To be new and material, the evidence would essentially have to show, when seen in the context of all the other evidence on file, that there is a reasonable probability that the veteran has a chronic neck or back disorder as the result of an injury in service or an acquired psychiatric disorder which began in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). The Board notes at the outset that the remand directed the RO to provide the veteran with a supplemental statement of the case addressing the laws and regulations relating to service connection. This was not done. Failure by the RO to comply with the directives in Board remands can cause needless delays in the appeals process. Fortunately in this case, review of the travel board hearing transcript shows that the veteran's representative cited the provisions of 38 C.F.R. §§ 3.303, 3.304. This demonstrates that the veteran and his representative were familiar with these regulations and their applicability to the veteran's appeal. Therefore, the RO's failure to cite these regulations in the supplemental statement of the case was harmless error. Additional service medical records have been received since the RO's June 1984 rating decision. These do not show treatment for any psychiatric disorder other than personality disorder. Additionally, no indications of further back and neck injuries other than the June 1981 shower fall are apparent. The veteran's neck and back injuries from that incident appeared to have healed without permanent residuals prior to his discharge from service. As the additional service medical records do not provide evidence of chronic psychiatric, neck or back disorders, they do not constitute new and material evidence. Pursuant to the Board's remand, a VA psychological assessment was conducted in November 1993. The veteran stated that he felt depressed all the time, complained that the government was ducking its responsibility toward him, and endorsed every symptom the examiner mentioned to him, such as anxiety, feelings of guilt, difficulties with concentration and impulsiveness. The veteran was unable to provide any information beyond a vague and general description of how he had reportedly experienced these symptoms. He also stated that he felt the diagnosis of personality disorder in service had been given in a deliberate attempt to avoid recognizing and compensating him for his reported physical injuries. The veteran's responses on the Minnesota Multiphasic Personality Inventory (MMPI) were noted to reveal an invalid profile, with his scores considerably elevated on every scale. The examiner stated that a possible explanation for the invalidity of the test results was that the veteran may have been consciously malingering or exaggerating. He may also have been consciously attempting to present a disturbed picture of himself in the hopes that this would assist him in obtaining a disability rating. The veteran's responses on the Shipley scale also appeared invalid. The examiner noted that he incorrectly answered some of the easy vocabulary items but gave correct answers on several of the more difficult questions. The veteran reported no history of psychiatric treatment other than the psychiatric evaluations during service in which he was diagnosed with a personality disorder and rule out malingering. The examiner stated that the veteran's current presentation was not suggestive of any formal thought disorder. The veteran's report of experiencing so many different symptoms and to such an extreme degree along with his frequent inability to elaborate on the symptoms beyond vague descriptions raised questions about the reliability of the information he presented and suggested that he may be malingering. The examiner further stated that several aspects of the veteran's presentation were suggestive of a continuing personality disorder, such as his inconsistent work behavior, legal difficulties, past charges of assault against him, self-reported impulsivity, frequent changes of address, and observed behavior during the interview and testing. The veteran appeared to have passive-aggressive and antisocial characteristics. The examiner stated that the personality disorder appeared to have been present before the veteran's military service and to have contributed to his difficulties in the military. Due to the unreliability of the veteran as a historian, the examiner was unable to state whether or not the personality disorder had worsened or improved over time. The diagnoses were malingering and personality disorder not otherwise specified. The recent examination indicates that the veteran does not have a chronic acquired psychiatric disorder. His diagnosis remains personality disorder. The veteran does not contend that he has ever been diagnosed with an acquired psychiatric disorder. Since the veteran's psychiatric diagnosis remains one for which service connection may not be granted, the evidence submitted with respect to this issue is not new and material, and the claim is not reopened. 38 C.F.R. §§ 3.156(a), 3.303(c) (1994). With respect to the veteran's attempt to reopen his claims for service-connection for back and neck disorders, private medical records dated in August 1984 indicate that the veteran was injured at that time when a 100 pound bag of meal fell on the back of his neck at work. The veteran reported a history of no prior accidents. Follow-up treatments revealed a diagnosis of lumbar and cervical strain. The veteran filed a Workers' Compensation claim with respect to this injury. Records also indicate that the veteran file a subsequent claim for another injury in January 1986 wherein he apparently fell down a flight of stairs at work and injured his tailbone and back. Medical records at the time of this claim show that the veteran complained of a 2 day history of neck and back pain following this fall. He also reported a previous back injury in 1983. X-rays of the lumbosacral spine taken in September 1985 were normal. A magnetic resonance imagining examination of the lumbosacral spine in July 1986 showed right parcental disc herniation at L5-S1 with bilateral facet hypertrophy asymmetrically greater on the right at the same level. The veteran was hospitalized in November 1986 with chronic low back pain. He reported that he had been in good health until a job- related incident in 1983 in which he was injured when a 100 pound bag fell on his shoulders. A lumbar myelogram showed arachnoiditis in the L5 region. Cervical spine X-rays dated in April and May 1988 showed straightening of the cervical lordosis. A VA general medical examination was conducted in November 1993. The veteran reported that he had fallen in the shower in 1981 while in service. He did not report any subsequent accidents or injuries except an automobile accident two years before. He complained of lower back and neck pain. On examination, the veteran stated that he was stiff and complained of pain with every motion. His low back and cervical spine motions were extremely limited. The diagnoses were ruptured disc in L5-S1, and central herniation at C5, very limited range of motion of both the lower back and cervical spine. A subsequent report of contact with the examiner noted that he stated that due to the intervening time it was not possible with medical certainty to offer an opinion as to whether there was any relationship between the veteran's purported inservice neck and back injuries and any current back pathology or any symptomatology now associated with the veteran's neck and back. A VA orthopedic examination was conducted in January 1994. The veteran reported neck and lower back pain. He stated that he had fallen in the shower in 1981 injuring his neck and back. On examination, the veteran had a hesitating and somewhat bizarre gait. His examination was replete with inconsistencies. There was no postural abnormality, and no fixed deformity of either the cervical, thoracic or lumbar spines. There was symmetrical well- developed musculature of the spine throughout. His ranges of motion appeared to be inappropriately and voluntarily restricted. The patient had good chest expansion and moved quite well when distracted. In fact, the veteran turned, got off the table and put his clothes on quite well. The veteran did not demonstrate any specific objective evidence of pain on motion. The neurological examination was normal throughout, although the veteran gave way inappropriately with all muscle testing. X-rays of the cervical and lumbar spines were normal. The diagnoses were normal examination cervical and lumbar spines and inconsistent examination. The medical evidence added to the record since the RO's June 1984 rating decision indicates that the veteran has had at least two injuries to his neck and/or back since service. He has reported inconsistent histories to various examiners, apparently depending upon the type of benefit he is seeking at the time. The most recent VA examiner found the veteran's complaints of pain and restricted motion to be exaggerated. The prior examiner, who diagnosed neck and back disorders, was unable to state that the current pathology was related to the veteran's service. The Board notes that this examiner was apparently not even aware of the veteran's post-service back and neck injuries. The post-June 1984 medical evidence does not provide a basis for changing the outcome of the RO's prior decision, and is therefore not new and material. Colvin, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156(a) (1994). The veteran also offered testimony before this Board member at a hearing in Nashville, Tennessee in September 1992. The veteran testified that his inservice back and neck injuries have led to chronic disabilities. The Board must assess the credibility of statements pursuant to the appeal. O'Hare v. Derwinski, 1 Vet.App. 365 (1991); Ferguson v. Derwinski, 1 Vet.App. 428 (1991). In this case, in light of the findings of the VA psychologist and orthopedist regarding the lack of reliability of the veteran's statements in the examination setting, the Board does not find the veteran to be a credible witness. Therefore, his statements do not constitute new and material evidence. While the veteran has submitted various items of evidence since the June 1984 rating decision, not every piece of evidence, even if relevant and probative, will justify the reopening of a case based on new and material evidence. There must be a reasonable probability that the new evidence would change the outcome. Guerrieri v. Brown, 4 Vet.App. 467, 470 (1993). The basis for the RO's prior denial has not been changed by the evidence received since June 1984. The evidence added to the record is inconsistent and shows signs of manipulation and dishonesty on the part of the veteran. It shows that the veteran has injured his neck and back on several occasions since his discharge from service. It does not demonstrate that a chronic back or neck injury was incurred in service. There is no equipoise between the positive and negative evidence, therefore no reasonable doubt issue is raised. Accordingly, the claims for service connection for neck and back disorders are not reopened. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994). ORDER New and material evidence not having been submitted to reopen a claim for service connection for a personality disorder, that benefit is denied. New and material evidence not having been submitted to reopen claims for service connection for neck and back disorders, those benefits are denied. JAN DONSBACH 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.