BVA9503833 DOCKET NO. 89-23 820 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder has been submitted. 2. Whether new and material evidence to reopen a claim for service connection for a seizure disorder has been submitted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and L. Robinson ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from August 1971 to August 1974. The instant appeal is from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) of August 1988, finding that evidence submitted to reopen previously disallowed claims for service connection for an acquired psychiatric disorder and for a seizure disorder is not new and material and that neither claim may be reopened. Rating decisions subsequent to that of August 1988 have been made in the Boston, Massachusetts, RO. The appellant appears to raise issues ancillary to, but not "inextricably intertwined," Harris v. Derwinski, 1 Vet.App. 180 (1991) with, the issues now on appeal: In a statement of August 29, 1991, he averred he was not competent at the time of the March 1975 denial of his claim to initiate an appeal and therefore that rating decision should not be deemed final. In a statement of February 19, 1993, he avers that his notice of disagreement with the August 1988 rating decision, from which the instant appeal arises, also disagreed with the application of 38 U.S.C.A. § 602 [recodified at § 1702] limiting service connection to treatment purposes only; he avers that section 1702 does not permit the limitation of benefits to treatment only (i.e., the exclusion of compensation from the benefits to which he is entitled) pursuant to the grant of service connection under that section. Such issues are not ripe for appellate review and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that medical evidence submitted subsequent to the last RO denial of his claims on their merits is new and material and together with the evidence previously of record establishes entitlement to service connection for compensation purposes as claimed. 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(s). 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 been submitted to reopen the claim for service connection for a psychiatric disorder, but the Board cannot review the claim on its merits without prejudice to the appellant. Appellate review of the claim for service connection for a seizure disorder is deferred pending return of the case from the remand appended to this decision. FINDINGS OF FACT 1. A rating decision of May 1980 denied a claim for service connection for compensation purposes for an acquired psychiatric disorder on its merits. 2. Evidence submitted subsequent to the May 1980 rating decision is relevant to and probative of the question whether the appellant incurred an acquired psychiatric disorder in service, and presents a reasonable possibility of changing the result of the prior final rating decision. CONCLUSION OF LAW New and material evidence to reopen a claim for service connection for a psychiatric disorder has been submitted. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's initial claim for service connection for a psychiatric disorder was denied in a rating decision of March 1975. The appellant did not timely appeal that decision, 38 C.F.R. § 20.302 (1993), which became final. 38 C.F.R. § 20.1103 (1993). In May 1980, the RO denied reopened the claim, reviewed the entire body of evidence, and denied the claim on its merits. The evidence of record in May 1980 comprised service medical records, VA inpatient and outpatient medical records from December 1974 to February 1975, and private medical records from Norwich State Hospital and from Lawrence and Memorial Hospital, dating from November 1974 to August 1979. Subsequent to the May 1980 rating decision, the appellant has submitted additional records from Norwich State Hospital from February 1975 to July 1987, Franklin Medical Center from September 1991, several psychiatrists and psychologists who performed evaluations for the Social Security Administration, and VA inpatient, outpatient and examination medical records from September 1977 to February 1994. The United States Court of Veterans Appeals (the Court) has summarized case law on claims to reopen previously and finally disallowed claims: [T]he RO or BVA must conduct a two-step analysis. First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". If it is, the RO or Board must then review the new evidence "in the context of" the old to determine whether the prior disposition of the claim should be altered. "New" evidence is evidence which is not "merely cumulative" of other evidence in the record. Evidence is "material" when it is relevant to and probative of the issue at hand and there is a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." In determining whether evidence is new and material, "the credibility of the evidence must be presumed." Bernard v. Brown, 4 Vet.App. 384, 389 (1993) (citations omitted). Additionally, the evidence to be reviewed for sufficiency to reopen a claim is all the evidence submitted since the most recent denial of the claim on its merits. Glynn v. Brown, 6 Vet.App. 523 (1994). The gravamen of the initial denial of the claim in March 1975 and of the May 1980 rating decision on the merits was that the appellant had a personality disorder in service, see 38 C.F.R. § 3.303(c) (1993), and his subsequently diagnosed acquired psychiatric disorder was not incurred in or aggravated by service, see 38 U.S.C.A. § 1110 (West 1991), either as shown by direct evidence or as shown by satisfying a statutory presumption of service incurrence. See 38 U.S.C.A. §§ 1101, 1112 (West 1991). The evidence submitted subsequent to May 1980 includes an October 9, 1980, psychological evaluation (received by RO May 1994) by William D. Cutler, Ph.D., with a diagnosis including "Axis II: V 71.09 - No diagnosis on Axis II. A Norwich Hospital discharge summary of July 14, 1987, included an Axis II diagnosis of "V71.09 No Diagnosis." Also among the records received by RO in May 1994 was a January 11, 1979, review of the available medical record by David G. Satin, M.D., who noted that "Diagnoses (and apparently interpretations) of claimant's emotional disability vary repeatedly and sometimes within the same hospital and month, between personality disorder . . . and chronic undifferentiated schizophrenia.." The diagnostic code V71.09 is used in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (3rd ed., rev. 1987) to indicate that no Axis II diagnosis (i.e., no personality disorder of specific developmental disorder) is present. Whereas the basis of the prior denial of the appellant's claim was the conclusion that he had a personality disorder in service, which is not a disability under VA regulation, 38 C.F.R. § 3.303(c) (1993), and that any existing acquired psychiatric disorder originated after service, evidence that directly contradicts the existence of a personality disorder is relevant and probative of the question whether psychiatric symptoms demonstrated in service were manifestations of an acquired psychiatric disorder versus the personality disorder then diagnosed. The evidence just discussed raises a reasonable possibility of a different result upon reopening and review of the entire evidence of record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). When there is such evidence, "[t]his does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence considered in the context of all the other evidence for a new determination of the issues." Smith v. Derwinski, 1 Vet.App. 178, 180 (1991). ORDER New and material evidence having been submitted to reopen a claim for service connection for an acquired psychiatric disorder, the claim is reopened. REMAND Review of the procedural history and development of the instant appeal persuades the Board that it cannot decide the merits of the appellant's reopened claim without prejudice to the appellant. See Bernard, 4 Vet.App. at 392-94. Consequently, the case must be remanded for adjudication on the merits prior to appellate review. The Board would find useful a current psychiatric examination with concentration on a longitudinal history to determine if there is any medical basis now discernible to rule out the presence of a personality disorder or otherwise determine that the symptomatology demonstrated in service or prior to August 1975 represented the onset of an Axis I mental disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a VA psychiatric examination with psychological testing to rule out an Axis II diagnosis and for an opinion as to whether the symptomatology demonstrated in service or prior to August 1975 represented the onset of an Axis I mental disorder. The examiner should conduct a longitudinal review of the appellant's claims folder, with attention to the January 11, 1979, report of Dr. Satin regarding inconsistencies in the record due to reliance on history taken from the appellant rather than review of the record, and to the psychological testing reports of Martin Grebel, Ph.D. (Mar. 15, 1979) and of Franklin Medical Center (Sep. 16, 1991). Provide the claims folder to the examiner prior to the examination. 2. Readjudicate the claim for service connection for an acquired psychiatric disorder based on all the evidence of record and provide the appellant and his representative with a comprehensive supplemental statement of the case, if appropriate. Following completion of the above actions, the case should be returned to the Board for further appellate consideration, as appropriate. No action is required of the appellant until he receives further notice. This REMAND is to develop evidence and to ensure the appellant is afforded due process of law. Further appellate review of the issue of reopening the seizure disorder claim is deferred pending completion of the dictates of this order. The Board intimates no opinion as to the final outcome warranted in this case. KENNETH R. ANDREWS, 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).