Citation Nr: 0004575 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 94-18 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis and, if so, whether the reopened claim may be granted. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for psychiatric disability and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from June 1943 to January 1946, from June 1948 to April 1952, and from April 1955 to May 1957. In December 1968, the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, denied service connection for psychiatric disability. The veteran did not file a Notice of Disagreement within one year of notice of that decision. In June 1987, the RO denied service connection for arthritis. The veteran did not file a Notice of Disagreement within one year of notice of that decision. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions, entered in February 1993 and March 1994, by the RO. A hearing was held before a hearing officer at the RO in March 1995, and the hearing officer's decision was entered in July 1995. In August 1996, the Board denied each of the issues which appear on the title page. Thereafter, the veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In response to a March 1998 motion by VA for matters including summary affirmance, the Court, in a Memorandum Decision dated in October 1998, with respect to each benefit presently on appeal, vacated and remanded the August 1996 Board determination for readjudication consistent with the Court's October 1998 decision. [citation redacted]. In March 1999, the veteran's claim was remanded to the RO for readjudication in accordance with a directive included therein which implicated the Court's October 1998 decision. Following completion of the development requested in the remand, a Supplemental Statement of the Case was mailed to the veteran in June 1999. Thereafter, the appeal was returned to the Board. FINDINGS OF FACT 1. In June 1987, the RO denied service connection for arthritis. The veteran did not file a Notice of Disagreement within one year of notice of that decision. 2. The additional evidence received since the June 1987 rating denial of service connection for arthritis includes evidence which is not cumulative and, in addition, is so significant that it must be considered in order to decide the claim 3. In December 1968, the RO denied service connection for psychiatric disability. The veteran did not file a Notice of Disagreement within one year of notice of that decision. 4. The additional evidence received since the December 1968 rating denial of service connection for psychiatric disability includes evidence which is not cumulative and, in addition, is so significant that it must be considered in order to decide the claim. 5. Arthritis was initially shown a number of years subsequent to service and is not etiologically related thereto. 6. The veteran's lone presently assessed psychiatric disability, schizophrenia, was initially diagnosed a number of years subsequent to service. CONCLUSIONS OF LAW 1. Evidence received since the unappealed June 1987 rating denial of service connection for arthritis is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. Arthritis was not incurred in or aggravated by service, nor may it be presumed or inferred to have originated therein. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 3. Evidence received since the unappealed December 1968 rating denial of service connection for psychiatric disability is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 4. Schizophrenia was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Arthritis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The June 1987 rating denial of service connection for arthritis is final, based upon the evidence then of record. 38 U.S.C.A. § 7105 (West 1991). However, if new and material evidence is submitted, a previously denied claim must be reopened. 38 U.S.C.A. § 5108. Therefore, the issue for appellate determination is whether the evidence received since the June 1987 decision is new and material under the provisions of 38 C.F.R. § 3.156(a). In accordance with 38 C.F.R. § 3.156(a), "[n]ew and material evidence means evidence not previously submitted to agency decisionmakers 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." In denying service connection for arthritis in June 1987, the RO, after observing that arthritis involving a number of joints was initially shown many years after service, determined that arthritis was not related to service. Evidence of record in June 1987 included the veteran's service medical records, which reflect that the veteran fell a distance of approximately 20 feet in 1944, apparently landing on his feet and thereafter experiencing pain and swelling on an intermittent basis. In April 1956, at which time the veteran complained of pain involving each foot and ankle and alluded to the 1944 fall, X-ray examination of the ankles and feet (in April 1956) revealed no arthritic pathology. Subsequent to service, a report pertaining to the veteran's hospitalization at a VA facility in June-July 1984 reflects a pertinent diagnosis of gouty arthritis. A report pertaining to the veteran's period of hospitalization at a VA facility in May-June 1986 reflects that, in the course thereof, pertinent X-ray examination revealed arthritis referable to the right ankle which was thought to be consistent with previous trauma. Also of record in June 1987 was a June 1985 statement from Arnold Bickham, M.D., which reflects that the veteran related having been injured in a fall "in 1943" in service, subsequent to which he experienced pain in areas including his feet and legs. Dr. Bickham opined that "in view of the findings", the veteran had arthritis involving areas including his legs which was "service related". Evidence added to the record since June 1987 includes a report, which reflects a pertinent diagnosis of osteoarthritis, pertaining to the veteran's period of hospitalization at a VA facility in November-December 1987. Received in apparently early 1992 was a May 1971 statement from Clarence E. Mansfield, M.D., wherein the physician indicated that he had treated the veteran for arthritis involving the right ankle in May 1971. A bone scan performed by VA in May 1994 was interpreted to reveal arthritis involving multiple joints. In March 1995, the veteran offered testimony at a personal hearing, the transcript of which is of record, which is to the effect that his then assessed arthritis originated in service. In considering whether new and material evidence has been submitted to reopen his related claim for service connection for arthritis, the Board has determined that at least one item of evidence added to the record since June 1987 is new and material. In this regard, the above-addressed May 1971 statement from Dr. Mansfield, which was not of record in June 1987, documents the presence of arthritis (involving the veteran's right ankle) in 1971, which is a number of years earlier than the initial date of assessment of arthritis based on the evidence in the RO's possession in June 1987. As such, this item of evidence is new and material, i.e., it is so significant that it must be considered in order to fairly decide the merits of the veteran's related claim. Therefore, since new and material evidence has been submitted, the veteran's claim for service connection for arthritis must be, and is, reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having reopened the veteran's claim for service connection for arthritis, which claim is well grounded in accordance with 38 U.S.C.A. § 5107(a), the Board will now proceed, in accordance with Manio v. Derwinski, 1 Vet. App. 140 (1991), to consider whether the veteran's reopened claim for service connection for arthritis may be granted. Service connection may be granted for disability which was either incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. In considering the veteran's reopened claim for service connection for arthritis, the Board would emphasize that, not only do service medical records make no reference to arthritis, but such pathology was not initially shown (even with consideration of the recently received May 1971 statement from Dr. Mansfield) until many years after the veteran's separation from his final period of service. The latter consideration, in turn, precludes a grant of service connection for arthritis on a presumptive basis. See 38 U.S.C.A. §§ 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. With respect to the matter of whether service connection might be granted on an inferred basis in accordance with the provisions of 38 C.F.R. § 3.303(d), while the Board has, to be sure, carefully considered the above-cited opinion advanced by Dr. Bickham (which is to the effect that the veteran's arthritis is traceable to service-incurred trauma), such opinion is found to be untenable owing to the following reasoning: Dr. Bickham gives no indication that he reviewed the veteran's service medical records or, equally significant, that he predicated his above-addressed opinion on any basis other than the veteran's recitation of his service medical history. The foregoing factors have each been cited by the Court as militating against the materiality of a medical opinion rendered under such circumstances. See Elkins v. Brown, 5 Vet. App. 474 (1993). In any event, such opinion is clinically suspect inasmuch as, while service medical records document that the veteran fell in service (in 1944), his feet and ankles were shown, on pertinent inservice X-ray examination performed twelve years later, in 1956, to be free of any arthritic pathology. There is, finally, no other evidence relating (relative to any affected joint) the veteran's presently shown arthritis to service. In light of the foregoing observations, then, the Board is constrained to conclude that the preponderance of the evidence is against the veteran's claim for service connection for arthritis. 38 U.S.C.A. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. II. Psychiatric Disability As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. The December 1968 rating denial of service connection for psychiatric disability is final, based upon the evidence then of record. 38 U.S.C.A. § 7105. However, as was noted above, if new and material evidence is submitted, a previously denied claim must be reopened. 38 U.S.C.A. § 5108. Therefore, the issue for appellate determination is whether the evidence received since the December 1968 decision is new and material under the provisions of 38 C.F.R. § 3.156(a). In accordance with 38 C.F.R. § 3.156(a), '[n]ew and material evidence means evidence not previously submitted to agency decisionmakers 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.' In denying service connection for psychiatric disability in December 1968, the RO, after observing that a psychosis was initially shown many years after service, determined that the veteran's then assessed psychiatric disability, schizophrenia, was not related to service. Evidence of record in December 1968 included the veteran's service medical records, which reflect that the veteran was seen by a psychiatrist in October 1955, at which time no psychiatric condition was found. In March 1956, the veteran was found to be free of any psychosis; when seen the following month, he was noted to have anxiety secondary to situational factors, for which his discharge on administrative grounds was recommended. Also of record in December 1968 was the report pertaining to the veteran's examination by VA in August 1957, on which occasion no significant psychiatric abnormality was noted. Thereafter, the veteran is shown to have been hospitalized at a VA facility from August to October 1968. His admission was apparently occasioned in response to the veteran's experiencing hallucinations; the pertinent diagnosis was schizophrenic reaction. Evidence added to the record since December 1968 includes a report pertaining to the veteran's hospitalization at a VA facility in September 1980 in response to problems including depression; the report reflects that the veteran initially began hearing voices six to eight years earlier. Thereafter, reports were received pertaining to the veteran's periods of hospitalization at a VA facility in 1985 and 1987, on which the pertinent diagnoses, respectively, were bipolar affective disorder and schizophrenia. The June 1985 statement from Dr. Bickham, M.D., referred to above, reflects that the veteran had advised the physician that he had been given medications by VA including Librium; the impressions listed by Dr. Bickham included "anxiety" which, 'in view of the findings', he felt was 'service related.' Also of recent receipt are lay statements from individuals including a former service comrade, one of which is dated in June 1987 and the most recent of which were received in 1997, which are, collectively, to the effect that the veteran was free of any psychiatric impairment prior to service but that there was a distinct change in his state of mind after his return from service. One lay statement infers that the veteran had manifestations of psychiatric disablement from the time he was discharged from service. Most recently, the veteran was psychiatrically examined by VA in November 1998, on which occasion his complaints included hearing voices. The diagnosis, following mental status examination, was schizoaffective disorder. In considering whether new and material evidence has been submitted to reopen the veteran's related claim for service connection for psychiatric disability, the Board has determined that at least one item of evidence added to the record since December 1968 is new and material. In this regard, the above-addressed June 1985 statement from Dr. Bickham is to the effect that the veteran's then assessed (i.e., in June 1985) anxiety is of service origin. The record in the RO's possession in December 1968 contained no evidence relating any psychiatric condition (whether or not a psychosis) to service. Therefore, the June 1985 statement from Dr. Bickham is new and material, i.e., it is so significant that it must be considered in order to fairly decide the merits of the veteran's related claim. Therefore, since new and material evidence has been submitted, the veteran's claim for service connection for psychiatric disability must be, and is, reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having reopened the veteran's claim for service connection for psychiatric disability, which claim is well grounded in accordance with 38 U.S.C.A. § 5107(a), the Board will now proceed, in accordance with Manio, supra, to consider whether the veteran's reopened claim for service connection for psychiatric disability may be granted. As was noted above, service connection may be granted for disability which was either incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. The veteran contends, in substance, that his presently assessed psychiatric disability is of service origin. However, in considering the veteran's claim for service connection for psychiatric disability, the Board is constrained to respectfully point out that, while the veteran is shown to have had a psychosis as early as the late 1960's, he was never assessed with the same in service and the initial diagnosis of the same (schizophrenia) was many years following his separation from his final period of service. The latter consideration, in turn, precludes a grant of service connection for the veteran's presently shown psychosis (schizophrenia, his apparently lone currently assessed psychiatric condition) on a presumptive basis. See 38 U.S.C.A. §§ 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. With respect to the question of whether service connection might be granted for such condition on an inferred basis in accordance with the provisions of 38 C.F.R. § 3.303(d), while the Board has not overlooked the above-cited opinion advanced by Dr. Bickham, such opinion bears on 'anxiety' of potential service origin. Since the veteran's lone currently assessed psychiatric condition is not 'anxiety' but rather a psychosis (schizophrenia), the opinion by Dr. Bickham is immaterial in the precise diagnostic context of this issue on appeal. In any event, to the extent that Dr. Bickham's opinion relative to anxiety of service origin may purport to infer that the veteran has experienced anxiety on a continuous basis since service, such opinion would rest on facts previously discredited by the RO (in the above-cited December 1968 rating denial), inasmuch as the veteran was shown to be free of any ascertained psychiatric impairment when examined by VA in August 1957, and thus, in such event, be of compromised materiality. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In addition, the Board has considered the above-addressed lay statements which are to the effect that the veteran initially exhibited psychiatric impairment shortly after, as opposed to preceding, what was apparently his final period of service. With respect to the foregoing statements, however, while lay persons are generally competent to testify that a claimant did not exhibit certain symptoms before service that were present after service, the Board would point out that assertions by lay witnesses are insufficient to create an inference of medical causation, i.e., that the veteran presently has psychiatric impairment of service origin. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In view of the several considerations advanced above, then, the Board is of the opinion that the preponderance of the evidence is against the veteran's claim for service connection for psychiatric disability. 38 U.S.C.A. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307. ORDER Service connection for arthritis is denied. Service connection for psychiatric disability is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals