BVA9507848 DOCKET NO. 93-14 976 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from October 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1992 by the Department of Veterans Affairs (VA) Providence, Rhode Island, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that new and material evidence sufficient to reopen his claims of entitlement to service connection for post-traumatic stress disorder and for vertigo has been submitted. The veteran further asserts that this evidence demonstrates that he developed the disorders for which he is seeking service connection as a result of his active service. Therefore, he requests favorable determinations by the Board. 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 post- traumatic stress disorder and for vertigo. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. An April 1990 Board decision denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder. 3. The evidence associated with the claims file subsequent to the April 1990 Board decision is cumulative of the evidence already of record or provides no reasonable possibility that such evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. 4. A February 1988 Board decision denied the veteran's claim of entitlement to service connection for vertigo. 5. The evidence associated with the claims file subsequent to the February 1988 Board decision provides no reasonable possibility that such evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. CONCLUSIONS OF LAW 1. The decision of the Board in April 1990 that determined that the veteran was not entitled to service connection for post- traumatic stress disorder is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991); 38 C.F.R. § 20.1100(a) (1994). 2. The evidence received since the Board denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder is not new and material; thus, the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). 3. The decision of the Board in February 1988 that determined that the veteran was not entitled to service connection for vertigo is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991); 38 C.F.R. § 20.1100(a) (1994). 4. The evidence received since the Board denied the veteran's claim of entitlement to service connection for vertigo is not new and material; thus, the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether New and Material Evidence has been Submitted to Reopen a Claim of Entitlement to Service Connection for Post- Traumatic Stress Disorder Service connection for post-traumatic stress disorder was considered and denied by the Board in April 1990. The relevant evidence then before the Board included the service medical records; VA outpatient treatment records dated from October 1978 to January 1979; a June 1984 VA hospital summary; the report of a July 1984 psychiatric evaluation conducted by Edward E. Cureton, M.D.; a September 1984 letter from Kathy Lowe, MSW; the report of a December 1984 VA examination; March 1988 to July 1989 treatment records from Frank D.E. Jones, M.D.; the report of an August 1988 VA examination; the report of a September 1988 examination conducted by Ralph B. Lilly, M.D.; a September 1988 letter from Michael R. Burkart, Ph.D.; a December 1988 letter from Dr. Lilly; the report of a December 1988 VA examination; and the transcript of the veteran's July 1989 personal hearing. The service medical records are devoid of any complaints, treatments, or diagnoses of a psychiatric disorder. In fact, the report of a May 1969 service medical examination, which was conducted shortly prior to the veteran's separation from service, does not indicate any psychiatric abnormalities. The VA outpatient treatment records dated from October 1978 to January 1979 indicate that the veteran reported feeling anxious and having difficulty sleeping. An assessment of anxiety state was recorded. The June 1984 VA hospital summary shows that the veteran was alert and oriented. In addition, no delusions, hallucinations, or suicidal ideations were found. A diagnosis of possible post- traumatic stress disorder was recorded. The report of a July 1984 psychiatric evaluation conducted by Dr. Cureton discloses that the veteran complained of sulleness, irritability, insomnia, and lack of ambition. No evidence of perceptual disturbances was noted but the veteran did admit to some paranoid thinking. Axis I diagnoses of dysthymic disorder and post-traumatic stress syndrome were recorded. The September 1984 letter from Kathy Lowe reveals that the veteran exhibited symptoms that were consistent with a diagnosis of chronic post-traumatic stress disorder. In addition, the veteran demonstrated some evidence of an atypical personality disorder and a pattern of episodic alcohol abuse. The report of a December 1984 VA examination indicates that the veteran reported experiencing conflicts in interpersonal relationships, mistrust of others, sleep disturbance, nocturnal anxiety, and drug and alcohol abuse. Diagnoses of paranoid personality disorder and a history of drug and alcohol abuse were recorded. The examiner noted that at that time, there was not enough symptomatology to justify the diagnosis of post-traumatic stress disorder. The March 1988 to July 1989 treatment records from Dr. Jones show that the veteran sought psychiatric treatment on a regular basis for post-traumatic stress disorder and elements of major depressive disorder. These records indicate that the veteran was treated with psychotherapy, medication, and hypnosis. The report of the August 1988 VA examination discloses that the veteran had little insight into his problems and that his judgment was fair. Diagnoses of questionable post-traumatic stress disorder as well as paranoid personality disorder were recorded. The report of the September 1988 examination conducted by Dr. Lilly reveals that the veteran demonstrated significant post- traumatic amnestic syndrome. His memory for media events was intact, but recent and remote events was distorted, particularly with an extensive post traumatic memory deficit. A diagnosis of post-traumatic stress syndrome with paranoid personality features and intermittent explosive behavior was recorded. The September 1988 letter from Dr. Burkart indicates that he saw the veteran for weekly individual counseling from February to April 1988 due to his complaints of depression, nightmares, and angry outbursts. Dr. Burkart determined that the veteran apparently had chronic post-traumatic stress disorder. The December 1988 letter from Dr. Lilly reiterates the findings of the September 1988 examination. The report of the December 1988 VA examination discloses that the veteran's affect was at times intense and inappropriate to ideation, but his mood was neutral and not depressed. The veteran did not have any psychotic thought processes although he did have a number of paranoid ideations regarding crowds and other people. In addition, he had no grandiose delusions and he was oriented times three. His memory was intact for past, recent, and remote events. The veteran had no degree of insight into his problems and his judgment was impaired at times secondary to his relationship with his girlfriend. The examiner concluded that the veteran did not appear to meet the criteria for post-traumatic stress disorder. Instead, the veteran was diagnosed with mixed personality disorder with some paranoid features and impulse discontrol. During his July 1989 personal hearing, the veteran testified as to the traumatic events that he experienced during service. The veteran also testified regarding the psychiatric symptoms that he was experiencing at that time as well as the treatment that he was receiving for his symptoms. When a claim is disallowed by the Board it may not thereafter be reopened and allowed, except on the basis of new and material evidence presented with respect thereto. 38 U.S.C.A. §§ 5108, 7104(b). In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The significant evidence that has been associated with the veteran's claims file since the April 1990 Board decision consists of medical records from Dr. Jones dated in 1988 as well as from November 1991 to February 1992. The 1988 records were previously reported in this decision. The November 1991 to February 1992 records indicate that the veteran was diagnosed with major depressive disorder and that psychotherapy, medication, and hypnosis were necessary. The 1988 records do not constitute new evidence as they were of record at the time of the April 1990 Board decision. Although the November 1991 to February 1992 records are new as they are not cumulative or redundant of the evidence that the Board considered in April 1990, they are not material as they do not provide a reasonable possibility that, when viewed in the context of all the evidence of record, there will be a change in the outcome of the veteran's case. In this regard, the Board notes that the new evidence does not even refer to post-traumatic stress disorder. On the basis of the foregoing, the Board concludes that no new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 20.1105. II. Whether New and Material Evidence has been Submitted to Reopen a Claim of Entitlement to Service Connection for Vertigo Service connection for vertigo was denied by the Board in February 1988. The significant evidence of record at that time included the service medical records, the report of a June 1975 VA examination, the report of a November 1977 VA examination, the report of a January 1983 VA examination, the report of a June 1983 VA examination, records from Rhode Island Hospital dated from May to June 1986, the report of a February 1987 VA examination, and the transcript of the veteran's September 1989 personal hearing. The service medical records indicate that the veteran complained of weakness, dizziness, and nausea in January 1969. No diagnosis was made and the veteran did not complain of these symptoms for the remainder of his period of service. The report of a May 1969 service medical examination does not reveal that the veteran had any neurologic or ear abnormality. The reports of the June 1975 and November 1977 VA examinations do not contain any complaints, findings, or diagnoses referable to vertigo. During his January and June 1983 VA examinations, the veteran complained of often having difficulty maintaining his equilibrium. No diagnosis of vertigo was recorded. The records from Rhode Island Hospital disclose that the veteran was being followed for paroxysmal vertigo ataxia in May 1986. A neurological workup suggested certain central pathology. Upon examination, the veteran was alert, awake, and oriented. The veteran's cranials appeared normal and he had good corneal sensations. Poor tandem walking and slight ataxia were found. The examiner felt that the veteran had Meniere's syndrome and was placed on diuretic therapy. In June 1986, the veteran was noted to have received some response to diuretic therapy and his physical examination was unremarkable. The report of the February 1987 VA examination shows that the veteran continued to complain of experiencing a loss of balance and dizziness. The examiner indicated that no clinical evidence of Meniere's disease was found. During his September 1987 personal hearing, the veteran testified that he had experienced dizziness since his separation from service and that this dizziness had gradually increased in severity. The veteran also testified as to his current symptoms. When a claim is disallowed by the Board it may not thereafter be reopened and allowed, except on the basis of new and material evidence presented with respect thereto. 38 U.S.C.A. §§ 5108, 7104(b). In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In order to be considered new, evidence must not merely summarize or repeat evidence submitted in previous proceedings. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The additional evidence ideally would establish some element to a claim which was missing when the earlier decision was made or establish something which was either unknown or missing and important to the claim. On the other hand, material evidence is evidence which is relative and probative of the issue at hand and which leads to a reasonable possibility that the new evidence, when viewed in the context of all the evidence of record, will change the outcome of the case. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The significant evidence that has been associated with the veteran's claims file since the February 1988 Board decision consists of records from Rhode Island Hospital dated from 1986 to 1988 and a December 1988 letter from Dr. Lilly. The 1986 record from Rhode Island Hospital was previously reported in this decision. The remainder of the records reveal that in March 1988, the veteran complained that his dizziness and balance problems had not improved since 1986. In addition, the veteran underwent an otological examination in May 1988, but no interpretation of the results was associated with the records. The December 1988 letter from Dr. Lilly indicates that the veteran complained of intermittently experiencing vertigo and imbalance. An impression of recurrent vertigo was recorded and the examiner suggested that the veteran did not have true Meniere's disease, but rather, a post-traumatic vestibular neuropathy. The 1986 record from Rhode Island Hospital does not constitute new evidence as it was previously considered by the Board in February 1988. The 1988 records from Rhode Island Hospital as well as the December 1988 letter from Dr. Lilly constitute new evidence as they were not of record at the time of the February 1988 Board decision. These documents, however, do not constitute material evidence as they do not provide a reasonable possibility that, when viewed in the context of all the evidence of record, there will be a change in the outcome of the veteran's case. In this regard, the Board notes that this evidence does not relate the veteran's vertigo to his active service. Accordingly, the Board finds that the necessary evidentiary requirements have not been met as new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for vertigo has not been submitted. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 20.1105. ORDER New and material evidence not having been submitted to reopen the veteran's claim of entitlement to service connection for post- traumatic stress disorder, the claim is denied. New and material evidence not having been submitted to reopen the veteran's claim of entitlement to service connection for vertigo, the claim is denied. WARREN W. RICE, JR. 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.