BVA9504043 DOCKET NO. 93-12 666 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from August 1941 to June 1944. In a January 1946 rating decision, the Department of Veterans Affairs (VA) regional office (RO) granted service connection for mixed type psychoneurosis. In a rating decision issued in September 1951, the RO proposed to sever service connection for a psychiatric disorder, after re-examination showed that the appellant's condition was a developmental disorder rather than an acquired psychiatric condition. The appellant was notified of the proposed rating action by letter dated October 1951. The appellant did not submit additional evidence, and by rating action dated May 1954, the RO severed service connection for a psychiatric disorder. The appellant was notified that same month of the action severing service connection, but he did not file a timely appeal as to this rating decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a a March 1992 rating decision of the Department of Veterans Affairs (VA) RO in Jackson, Mississippi, which denied the appellant's request to reopen a claim of entitlement to service connection for an acquired psychiatric disorder and denied a claim of entitlement to service connection for PTSD. CONTENTIONS OF APPELLANT ON APPEAL In his notice of disagreement, the appellant contends that the diagnosis of his condition during service, for which he was granted service connection, was correct, and that the RO erred factually and procedurally when it found that the initial diagnosis was incorrect and severed service connection for that initial diagnosis. He further contends that he was nervous at the time of his discharge and that his condition has remained unchanged since then, so that the psychiatric disability he currently manifests is the same disability which manifested in service. Alternatively, he contends that the acquired psychiatric disorder causing his current disability includes PTSD. 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 a claim for service connection for an acquired psychiatric disability. The Board further finds that a claim for entitlement to service connection for PTSD is not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. The rating decision of May 1954 severing service connection for an acquired psychiatric disability became final in the absence of a timely appeal. 3. Additional evidence received subsequent to that rating decision, assuming the credibility of the new evidence, does not raise a reasonable possibility of changing the outcome of the case, since the new evidence does not raise a reasonable possibility that the appellant has a current psychiatric disability, or that a current psychiatric disability, if any, is related to service or related to, caused by, or linked to any psychiatric disorder acquired in service. 4. There is no medical evidence or medical opinion that the appellant has been diagnosed as having PTSD, nor is there any medical evidence that the appellant has displayed or complained of any signs or symptoms of PTSD, nor did the appellant engage in combat with the enemy; the appellant's unsupported lay assertion that he has PTSD is not plausible. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the May 1954 rating decision which severed service connection for an acquired psychiatric condition. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a). 2. The appellant has not submitted evidence of a well-grounded claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304(f) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim that he suffers from a psychiatric disability other than PTSD as a result of his experiences in service is plausible and is well-grounded within the meaning of 38 U.S.C.A. § 5107(a), which mandates a duty to assist the veteran in developing all relevant evidence. The evidence of record since the prior unappealed severance of service connection for a chronic acquired psychiatric condition includes post- service inpatient and outpatient private medical records and VA examinations conducted in August 1992. There is no indication that there are additional records which would be relevant. The Board is satisfied that all available, relevant evidence has been obtained and that there is no further duty to assist the veteran. The appellant's claim that he is entitled to service connection for PTSD, however, is not well-grounded, and as to that claim, there is no duty to assist the appellant to develop evidence. A 1954 rating determination by a VA regional office, because not appealed within one year of the date of mailing of the notice of the rating determination, became final. 38 C.F.R. §§ 3.8, 3.330 (1949). In this case, the appellant was notified in 1951 that service connection would be severed, and the appellant took no action regarding that notification. In 1951, as now, service connection could not be granted for a constitutional or developmental disorder. See Beno v. Principi, 3 Vet.App. 439, 441 (1992). In May 1954, the appellant was notified of final action severing service connection for his psychiatric condition and of his right to appeal that determination. The appellant responded by letter filed with the RO in June 1954, stating that his disability rating had been cut "without a good examination" and requesting information about appeal rights, which he indicated had not been included with the notice of final action. The RO provided the appellant with the dates of the examinations on which the determination to sever service connection was based and provided him with appeal rights information. Under the 1954 regulations, the appellant's 1954 letter did not constitute an appeal. See 38 C.F.R. §§ 3.330, 3.333, 19.2, 21.0 (1949); 38 C.F.R. §§ 3.330, 19.2, 21.0 (1956). In the absence of a timely appeal, the May 1954 rating decision became final. However, if new and material evidence is presented or secured, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.104(a), 3.156 (1994); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). When a veteran seeks to reopen a claim based upon new evidence, a two-step analysis must be performed. First, the evidence must be reviewed to determine if it is new and material; and, if the evidence is new and material, the case must be reopened and the claim must be evaluated in light of all the evidence of record, both old and new. Manio, 1 Vet.App. at 145. "New" evidence is evidence which is not merely cumulative of other evidence on the record. "Material" evidence is relevant and probative of the issue at hand. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence, in order to be new and material, must raise a reasonable possibility that when viewed in conjunction with all evidence, both old and new, the new evidence would change the outcome of review of the claim. Id. at 174. The credibility of the evidence submitted since the prior denial is presumed for the purposes of determining whether the claim should be reopened. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption is made only for the purpose of determining whether the case should be reopened. Id. In determining whether new and material evidence has been submitted, all evidence submitted since the last final determination on the merits must be considered. Glynn v. Brown, 6 Vet.App. 523 (1994). In order to determine whether the appellant has submitted new and material evidence to reopen the May 1954 rating decision, the Board has reviewed the evidence of record associated with the claims folder at the time of the 1954 decision. Service medical records show multiple periods of hospitalization from August 1943 to June 1944 during which the veteran reported having been nervous, trembly and shaky since childhood. On hospitalization in May 1944 he complained of nervousness and trembling all his life and described becoming nervous and trembling since childhood whenever he had to do much work or meet people. He had always been seclusive and since entering service had had frequent periods of weakness, shaking, teariness and precordial pain. It was reported that he had done detail duty during his whole service career. Psychoneurosis was diagnosed after all periods of hospitalization, and it was consistently determined that the disorder had existed prior to entry into service. A Board of Medical Officers recommended his discharge by reason of severe anxiety type psychoneurosis, manifested by timidity, inadequate personality, apprehension, chest pains and weakness and emotional instability in a conscientious objector. The Board determined that the disability existed prior to service and was not aggravated by service. Discharge by reason of disability was effectuated. The appellant underwent VA hospitalization for observation and examination in December 1945. It was remarked that he manifested the characteristics of a very definitely, basically inadequate individual with emotional instability and inadequate personality. The final diagnoses were psychopathic personality, inadequate personality, emotional instability and mixed type psychoneurosis. On the basis of this evidence the RO granted service connection for mixed type psychoneurosis in 1946. On VA examination in March 1948 the diagnosis was chronic, moderate psychogenic cardiovascular reaction manifested by precordial pains, tremulousness and weakness. In July 1951 the appellant underwent psychiatric evaluation by the VA. The examiner reviewed his records and interviewed him and determined that the diagnosis of psychoneurosis in service was clearly in error and that the correct diagnosis was psychopathic personality without psychosis, inadequate personality type, episodes of emotional instability. In August 1951 the examiner again reviewed the case and examined the appellant. He certified a change in diagnosis to psychopathic personality without psychosis, of the inadequate personality type. On the basis of these examinations, the RO proposed and eventually effectuated the severance of service connection, concluding that the appellant's personality disorder was not a disability under the law. VA regulations provide that personality disorders are not disabilities for which compensation may be paid. 38 C.F.R. § 3.303(c). Since that decision, no evidence which is both new and material has been submitted, even presuming the credibility of all evidence submitted since 1954. Since the 1954 rating decision, the appellant has submitted inpatient and outpatient treatment records dated 1982 to 1992. Those records reflect treatment for myocardial infarction, including a 5-vessel coronary artery bypass, diagnostic testing following complaints of abdominal pain, and treatment of hypertension and other general medical problems, but do not reflect psychiatric evaluation, treatment, referral, or occupational impairment from other than general medical conditions. Reports of eye examination and treatment from 1960 through 1980 were also submitted. These records, while new, contain no information probative of the issue of whether the appellant suffered from a chronic acquired psychiatric disability in service, in 1954, or currently suffers from such disability. These inpatient and outpatient records include no reference to treatment for psychiatric problems or symptoms and no references to any impairment due to psychiatric disability. Because these "new" records contain no evidence which would raise a possibility of changing the 1954 determination, they are not material to reopen that determination. VA medical and psychiatric examinations conducted in August 1992 are also new evidence of record. On general medical VA examination conducted in August 1992, the appellant stated that he did not have any mental problems. During psychiatric examination in August 1992, the appellant complained of being shaky and feeling weak at times, but denied panic attacks, nightmares, flashbacks, hallucinations, or depression. Significantly, the appellant gave no history of treatment for any psychiatric disability and described no occupational impairment. The appellant stated that he had no problems in his relationships with his wife and daughter and stated that he was working part-time. The examiner found that his memory, intellectual, and cognitive functions were good. The examiner found that the appellant had some somatic complaints and diagnosed an undifferentiated somatoform disorder. The examiner stated that the appellant did not have PTSD, that he had no disability due to any psychiatric disorder, and that current disability, if any, appeared to be due to medical problems. Significantly, the examiner provided a rating of 75 on Axis V, the Global Assessment of Functioning Scale. That score is defined as reflecting transient symptoms of a psychiatric condition with no more than slight impairment of functioning. American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS III-R 12 (3rd. ed. 1987). The VA psychiatric examination conducted in August 1992 includes a diagnosis of an undifferentiated somatoform disorder. This condition was not present during appellant's service or at the time of the 1954 action. While the examiner concluded that the appellant had a psychogenic cardiovascular reaction on examination in 1948, on re-examinations in July and August 1951, the appellant was found to have a developmental psychiatric condition, psychopathic personality without psychosis, rather than an acquired chronic psychiatric condition. The examiner noted his disagreement with the previous diagnosis of psychoneurosis, stating that the appellant's primary defect was an inadequate personality, not emotional instability, and, in certifying his diagnosis, as required under regulations then in effect, the examiner specifically discussed the American Psychiatric Association criteria and classifications. See 38 C.F.R. § 3.9 (1949); 38 C.F.R. § 3.9 (1956). In this case, evidence that would demonstrate a medical relationship between the veteran's in-service psychiatric disability and his current disability, or evidence which would demonstrate the chronicity and continuity of the appellant's in- service disability, would be "material" evidence. Godfrey v. Derwinski, 2 Vet.App. 352 (1991). The appellant has not provided any medical evidence or opinion raising a possibility that the appellant's current disability was incurred in service. The examiner who conducted the 1992 VA psychiatric examination specifically concluded that the appellant had no disability due to a psychiatric disorder. This evidence, while "new," does not raise a reasonable possibility that the disposition of the 1954 action, denying service-connection for a psychiatric condition, would be changed. See Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Colvin v. Derwinski, 1 Vet.App. 170, 174 (1991). Further, there is no medical indication or opinion in the 1992 report of examination or in other medical evidence submitted by appellant to raise a possibility that the new findings, dated more than 45 years after service, are related to disease or injury incurred in service. This information does not raise a reasonable possibility that the new evidence would change the disposition of the claim in 1954, since this is a new diagnosis, not the same condition which the appellant alleges he had in service, and the new evidence of record raises no possibility of a finding of chronicity or continuity of a psychiatric condition acquired in service. The only additional evidence of record since the 1954 action addressing whether the appellant's current disability was incurred in service is the appellant's opinion that he has the same nervous condition now that he had in service. Apart from the appellant's own assertions regarding medical causation, the appellant has not presented any medical evidence that the new findings on the 1992 examination represent residuals of disease or injury incurred in service. The appellant's lay assertion that his current psychiatric condition is the same condition he had inservice are not "material," because those assertions cannot serve as medical evidence probative of medical causation. Moray v. Brown, 5 Vet.App. 211, 214 (1993). None of the "new" evidence submitted since the 1954 denial of appellant's claim for service connection of a psychiatric disability raises a reasonable possibility, assuming the credibility of all new evidence, that the appellant's current disability was incurred in service. The evidence, while new, is not material. The claim for service connection for a chronic acquired psychiatric disability is not reopened. The appellant also contends that the RO erred in 1954 when it severed service connection for an acquired psychiatric disability. The Board may examine a final rating decision to determine whether that rating decision was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (1994). The record here discloses that all facts as they were known at the time in 1954 were before the adjudicators, as the physician who conducted the 1951 examinations described and discussed the appellant's treatment in service and past examinations and diagnoses, and the May 1954 rating action discusses the full range of evidence. The evidence of record further discloses that the 1954 rating action was conducted in conformity to the regulations in effect at that time, so there was no clear or unmistakable error in application of law or regulations. Under 38 C.F.R. § 3.9(d), the RO was vested with authority to sever service connection on the basis of a change in diagnosis providing that the examining physician certified, in light of all the accumulated evidence, that the prior diagnosis was not correct. In this case, the examining physician provided a certification which conformed with the requirement of section 3.9(d) (also referred to in the file as VA Regulation 1009(D)) and the May 1954 rating action reflects that the rating board reviewed the record for certification and conformance with the applicable regulation. The rating board found, as a matter of fact, that the certification did conform with the regulation, and that factual determination was correct. The May 1954 rating decision, therefore, may not be reversed on the basis of clear and unmistakable error. The appellant now claims service connection for PTSD as a result of service, a claim not previously considered. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence in support of a claim is evaluated in light of the places, types, and circumstances of service. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.306(b)(2). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). See also Zarycki v. Brown, 6 Vet.App. 91, 98 (1993). The appellant claims that his current psychiatric disability includes PTSD. Service connection for PTSD requires medical evidence establishing a clear diagnosis thereof, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). Service connection may be granted if the evidence shows that there is a nexus between the appellant's current condition and his military service, even though PTSD was not shown during service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). In this case, the appellant has not submitted evidence that he has been treated for PTSD, either in service or post-service, nor has he submitted medical evidence that he currently has a diagnosis of PTSD. The appellant has not submitted evidence that he displays currently or has displayed in the past signs or symptoms of PTSD or that he has ever complained of symptoms that might be related to PTSD. The medical evidence submitted includes an opinion that the appellant does not, in fact, have PTSD. Further, no presumption that the appellant experienced stressors or incurred PTSD during combat is applicable, because, although the appellant served during World War II, he served only in the United States, and did not engage in combat with the enemy, nor does the appellant so contend. The appellant contends that his assignment as an orderly in the barracks, kitchens, officer's mess, and latrines and sweeping and mopping the officers' headquarters caused him to be weak and trembly due to his poor physical condition. The evidence of record does not include credible supporting evidence to corroborate the appellant's contention that he was in poor physical condition when given these assignments, nor does the appellant contend that these assignments were psychologically distressing events, outside the range of normal human experience, involving actual or threatened death or serious injury and intense fear or helplessness, such as would be recognized under the diagnostic criteria for PTSD as stressors sufficient to cause delayed-onset PTSD. 38 C.F.R. § 3.304(f); see also VA, Physician's Guide for Disability Evaluation Examinations 20.1, 20.3, 20.5. Since there is no medical evidence or opinion establishing or tending to establish that the condition claimed by the appellant, PTSD, is actually present, other than the appellant's own allegation, he has not submitted a well-grounded claim for service connection for PTSD, and the claim must be dismissed. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). ORDER New and material evidence to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disability has not been submitted. The claim is not reopened. The appellant's claim of entitlement to service connection for PTSD is not well-grounded, and is dismissed. HOLLY E. MOEHLMANN 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.