BVA9500763 DOCKET NO. 93-04 930 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The appellant had active service from March 1971 to February 1972. A rating decision by the Department of Veterans Affairs (VA) Roanoke, Virginia, Regional Office (RO) in April 1988 denied entitlement to service connection for post-traumatic stress disorder. The veteran was informed of the denial and did not file a timely appeal. This represents the last final denial on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994). In 1991, the appellant attempted to reopen a claim for entitlement to service connection for post-traumatic stress disorder. The RO, in a rating decision in June 1991, determined that some of the additional evidence, while new as it had not been considered before, was not material, and therefore, the claim for service connection for post-traumatic stress disorder was not reopened. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the additional evidence he submitted establishes he was in combat and was involved in stressful situations particularly when his helicopter crashed. He contends that he was wounded while in service. It is also contended on behalf of the appellant that the Social Security Number he had during service was ***********, and that his current Social Security Number is reported as ***********. It is contended that there is no confirmation in the claims folder that the veteran who served under SS *********** was the same person as the appellant. Therefore it is contended that there is a question as to whether or not the records of the appellant have been properly developed, particularly in view that his claim for a post-traumatic stress disorder was denied in 1988 on the basis that he was a clerk-typist and not involved in combat with helicopters. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that both new and material evidence sufficient to reopen a claim for entitlement to service connection for post-traumatic stress disorder has not been presented. FINDINGS OF FACT 1. A rating decision by the RO in April 1988 denied entitlement to service connection for post-traumatic stress disorder. The veteran was notified and an appeal was not timely perfected. 2. Additional evidence submitted since the above rating and considered in association with the application to reopen the claim for service connection for post-traumatic stress disorder, is cumulative in nature, and when viewed in the context of all the evidence of record, does not raise a reasonable possibility of a change in the prior adverse outcome. CONCLUSIONS OF LAW 1. Evidence received since the RO's denial of service connection for post-traumatic stress disorder in April 1988 is not both new and material and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 2. The RO's April 1988 decision denying entitlement to service connection for post-traumatic stress disorder is final. 38 U.S.C.A. §§ 1110, 7105 (West 1991); 38 C.F.R. § 3.104(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Unappealed rating actions are final with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991). The question now presented is whether new and material evidence has been submitted, since the prior adverse rating decision of April 1988, to permit reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For the evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative to the issue at hand; and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156 (1993); Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence which was of record at the time of the RO's prior denial of service connection for post-traumatic stress disorder in April 1988 may be briefly summarized. The veteran's personnel records disclose that he served in Vietnam from August 24, 1971, to January 3, 1972, (not from April 1971 as he has claimed) as a clerk-typist and that he had a period from December 1971 to January 3, 1972, in drug rehabilitation. In December 1971, the veteran underwent a mental status evaluation which was normal. The diagnosis was severe misuse of drugs. On a report of medical history dated December 16, 1971, he denied that he suffered from depression or excessive worry or nervous trouble of any sort. In January 1972, he was seen in the mental health clinic as a result of his drug abuse. It was reported that he had a preservice history of taking heroin and that he entered the army to avoid continued drug use. It was reported he did well until sent into combat. On January 17, 1972, he was cleared for administrative action. The physical examination for separation revealed no psychiatric abnormalities. There was no history or finding referable to any shrapnel wound. The appellant had a period of VA hospitalization from December 1978 to February 1979. Discharge diagnoses were: Situational reaction of adult life manifested by rejection of controlling mother by fugue state and sociopathic (antisocial personality). During this hospitalization, he had no complaints indicative of post-traumatic stress disorder. It was also noted that he did not always tell the truth and had been found to color the truth with glowing falsehoods. The appellant was examined by a private psychiatrist in April 1982. Diagnoses included: Major depression, recurrent, possible psychogenic amnesia, possible epilepsy. During a period of VA hospitalization in August 1982, the veteran reported he injured his right groin-thigh area during a helicopter ride in Vietnam. The discharge diagnosis was myositis ossificans of the right thigh. It had been removed during this hospitalization. The appellant had a period of VA hospitalization from March to April 1984. It was reported that he started on heroin and marihuana while in service. The diagnoses included amphetamine abuse, marijuana abuse, obesity, and hypertension and cardiovascular disease by history. During this hospitalization he gave a history of a shrapnel wound of the groin and treatment in delayed stress programs. VA outpatient records disclose the veteran was seen on numerous occasions during 1984 and 1985 for therapy concerning substance abuse. He was also being monitored for some weight reduction during that time. A VA psychological evaluation in December 1984 indicated the veteran was essentially a very immature, undeveloped individual who had not progressed beyond the earliest stages of development. It was noted that the veteran had difficulty with the demands of employment, marriage, and parenting. In November 1987, the veteran underwent a VA neuropsychiatric examination. The examiner reported the veteran was not a very good historian and could only give approximate information. He advised the examiner that he spent several months in Vietnam until he was wounded by shrapnel in the right groin. The examiner stated that the claims file was not available at the time of the interview. The veteran stated that he was a door gunner on a helicopter and on one occasion, was present when three other helicopters were shot down and ambushed. Later on around Christmas, he maintained he fell out of a helicopter. He complained of continued nightmares and flashbacks dealing with events that he witnessed in Vietnam. The VA psychiatrist reported on the basis of available information and this interview with the veteran and his wife, that the diagnostic impression was post-traumatic stress disorder, chronic. He also diagnosed passive-aggressive personality traits. A VA social and industrial survey in November 1987 indicated an in-depth psychiatric/medical evaluation would be required to ascertain the cause of the veteran's psychiatric impairment, for example, drugs versus post-traumatic stress disorder. In March 1988, the Department of the Army, United States Army and Joint Services Environmental Support Group reported that a review of the 128th Assault Helicopter Company history for January 1, through December 31, 1971, did disclose that on December 9, 1971, the 128th performed an emergency re supply and medivac mission for a Company from the 18th ARVN Division. None of the helicopters was lost. The records revealed that one individual was wounded, it was not the veteran. A review of the United States Army casualty files failed to list the veteran as wounded. The rating decision in April 1988 was based on the foregoing information, and on service personnel records showing that the veteran was a clerk-typist and not a door gunner. He was in Vietnam from late August 1971 to early January 1972. It indicated that as of December 6, 1971, he was assigned to a drug rehabilitation program. It was noted in the rating that there was no evidence in the service medical records of the claimed shell fragment wound and that the veteran was discharged shortly after his return to the United States because of his drug abuse. It determined there was no evidence of record to show the veteran was involved in any significant combat. The RO stressed that the diagnosis provided by the VA physician of post-traumatic stress disorder was based on the veteran's history which is unsupported by the other evidence of record. Prior to evaluating the additional evidence submitted, the Board will address the contention to the effect that the case be remanded because of the two different Social Security numbers assigned to the appellant's records. The Board is aware, as contended, that the veteran's service medical records report his Social Security Number as ***********. Currently, his Social Security Number is listed as ***********. The Board notes, however, that in the veteran's letter in April 1987, he himself reported that his service number had been *********** and that his new Social Security Number was ***********. Based on this admission by the veteran, it is apparent that he has been assigned two different Social Security numbers. However, the Board finds that a remand on this issue would serve no useful purpose because the veteran has admitted that the Social Security Number 964 00 3626, used during his period of service, was his own. Further, it appears that all records available for this veteran's service have been obtained. Evidence added to the claims file concerning the issue of entitlement to service connection for a post-traumatic stress disorder includes VA outpatient records dated in 1989 and 1990, disclosing treatment for diabetes, hypertension, and a visual defect; a post-traumatic stress disorder attachment prepared by the veteran in which he claimed several stressful events during service in Vietnam from April 1971 to February 1972; a copy of a decision by a Social Security administrative law judge; another copy of the report of the VA hospitalization in August 1982; and, additional VA treatment records from April to May 1991 for polysubstance abuse and diabetes. After our review of the record, it is concluded that the additional evidence is not both "new and material." Accordingly, the claim is not reopened and the RO's April 1988 denial of entitlement to service connection for post-traumatic stress disorder remains final. The RO has conceded that the additional evidence is "new." It is new only in that most of it was not previously of record. However, the United States Court of Veterans Appeals (the Court) in Colvin v. Derwinski, 1 Vet.App. 171 (1991) held that in order to reopen a claim, the additional evidence must also be material and that there is a reasonable possibility that the additional evidence, when viewed in context of all the evidence, both new and old, would change the outcome. The evidence previously of record did show a diagnosis of post-traumatic stress disorder. However, as the Court indicated in Wood v. Derwinski, 1 Vet.App. 406 (1991), reconsideration denied, 1 Vet.App. 406 (1991), in addition to a diagnosis of post-traumatic stress disorder, the record must also demonstrate the appellant was exposed to a confirmed stressor and warrant the diagnosis. In the Wood decision, the Court stated the Board was not bound to accept the appellant's uncorroborated account of his Vietnam experiences. Also, the Court in that decision noted that neither the appellant's military specialty (cannoneer) nor his service records disclosed the nature of his duties exposed him to more than an ordinary stressful environment given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. The primary additional evidence concerning the veteran's claim for post-traumatic stress disorder is the post-traumatic stress disorder attachment filled out by the veteran. Initially, we note that he claimed in this document that he served in Vietnam from April 1971 to February 1972 and that his duties consisted of guarding helicopters. However, the record establishes that he was only in Vietnam from August 24, 1971, until January 3, 1972, and during the period from December 6, 1971, until January 3, 1972, he was in drug rehabilitation. Also, his military occupational specialty was as a clerk-typist and not guarding helicopters as he claimed. Also, the Social Security administrative law judge did not find that the veteran suffered from post-traumatic stress disorder as claimed by the veteran. The administrative law judge reviewed the veteran's medical record up to 1985 A Social Security psychiatric review, dated in April 1986, found only that he suffered from a substance abuse disorder. In the absence of additional evidence of a confirmed stressor, there is no reasonable possibility that the additional evidence, when viewed in context of all the evidence, both new and old, would change the outcome. The veteran has reported that he received a shell fragment wound in Vietnam. As with the claimed stressors, there is no verification of this claim. In fact, after service the veteran had surgery for myositis ossificans of the right thigh. This no doubt left a scar, but there was no reference to shrapnel during service or during that hospitalization. The diagnosis of post-traumatic stress disorder in this case is predicated on a factually incorrect history provided by the veteran. Review of the record does not otherwise support the diagnosis. "An opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet.App. 458. 461 (1993). The evidence added to the record, in association with the reopened claim, is not new and material. As such there is no basis for reopening the claim. Once new and material evidence is not found, adjudication of the claim should cease. See Kehoskie v. Derwinski, 2 Vet.App. 31 (1991). ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder, the appeal is denied. MICHAEL D. LYON 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.