Citation Nr: 0002737 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-15 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from January 1953 to May 1955. This appeal comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which determined that no new and material evidence had been submitted to warrant reopening a claim of entitlement to service connection for a psychiatric disorder and also denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder. FINDINGS OF FACT 1. In a decision dated in December 1997, the Board, inter alia, denied the veteran entitlement to service connection for an acquired psychiatric disorder. 2. The veteran did not appeal the December 1997 decision, nor did he request reconsideration of that decision. 3. That evidence associated with the claims file subsequent to the December 1997 decision, by itself and in connection with evidence previously assembled, is not so significant that it must be considered to decide fairly the merits of the claim. 4. The veteran received treatment at a VA facility in 1990 and May 1991 for Peyronie's disease. 5. A prostate disorder is not shown to be causally or etiologically related to VA treatment. CONCLUSIONS OF LAW 1. The December 1997 Board decision, which denied entitlement to service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7103 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence to reopen the claim for service connection for a psychiatric disorder has not been submitted. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The requirements for compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder due to medical treatment by the VA have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence - Psychiatric Disorder By a decision of December 1997, the Board, inter alia, denied entitlement to service connection for an acquired psychiatric disorder, and the veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims (Court). Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a) (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100(a) (1999). The law provides that the prior Board decision cannot be modified unless evidence submitted in support of the veteran's claim to reopen is "new and material" pursuant to 38 U.S.C.A. § 5108 (West 1991). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted 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 the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a); see also Hodge, 155 at 1363. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The previously mentioned December 1997 Board determination was predicated on the fact that the earliest medical evidence of psychiatric disorder is dated in 1981, many years after service; there was no competent evidence of a psychiatric disorder during service; there was no competent evidence of a psychosis within one year of separation from service; and there was no competent evidence attributing the remote onset of the disorder to service. Absent such evidence, the veteran's claim for service connection for an acquired psychiatric disorder was denied. In the context of the Boards December 1997 decision, due consideration was given to the fact that the veteran's service medical records were missing. Accordingly, the Board carefully explained its findings and conclusions and considered the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the context of the current claim, the veteran has submitted several treatment/clinical records from 1997 to 1998. The records document that the veteran provided a history in April 1997 that he was gassed in service. He also has advanced an argument re-raising the matter of the missing service records. The medical records recently submitted are cumulative of the previously established fact that the veteran currently suffers from a psychiatric disorder. However, such records do not establish the onset of such a condition as a result of the veteran's service. With respect to the reported history of being "gassed," evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence." See LeShore v. Brown, 8 Vet. App. 406 (1995). A bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. Significantly, the Board notes that the physician does not relate the psychiatric diagnosis of a delusional disorder to service. The veteran's statement concerning missing service records adds nothing new to the record that was not already of record and fully considered at the time of the December 1997 decision. In view of the reasons for the prior denial, the newly submitted items of evidence and statements add nothing new to the record. In sum, given the bases for the prior denial, the evidence received since December 1997 is not, by itself or in connection with evidence previously assembled, so significant that it must be considered to decide fairly the merits of the veteran's claim. As no new and material evidence has been presented, the veteran's claim of entitlement to service connection for a psychiatric disorder has not been reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Prostate Disorder As a preliminary matter, the Board notes that the RO has addressed the claim regarding entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder on the merits. However, the claim may arguably be more appropriately couched as whether new and material evidence has been received to warrant reopening a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder, considering that the claim was previously finally denied by a December 1997 Board decision. Notwithstanding, taking into consideration the newly submitted evidence that the veteran's spouse has participated in some medical training, such evidence taken together with her previous statements to the effect that VA treatment from May 1991 caused or negligently overlooked the onset of a prostate disorder, the Board is satisfied that new and material evidence has been submitted. The Board also finds that the veteran has presented a claim which is "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled. Given that the RO adjudicated the claim on the merits, the Board perceives no prejudice to the veteran by the approach taken by the RO since the Board will also undertake the adjudication on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). Title 38, United States Code, Section 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospital, medical or surgical treatment, compensation shall be awarded in the same manner as if such disability were service connected. Amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 require a showing not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. Those amendments apply to claims for compensation under 38 U.S.C.A. § 1151, which were filed on or after October 1, 1997. See VAOPGCPREC 40-97 (Dec. 31, 1997). Therefore, as the veteran filed this claim in January 1998, the new standard is applicable. The veteran underwent treatment in May 1991 for Peyronie's disease, which, according to testimony of record, included the doctor telling the veteran to rub fish oil on his genitals. It is maintained that the VA physician negligently failed to identify the claimed prostate disorder or, alternatively, prescribed an illogical course of treatment. In support of the claim is a document purporting to be a treatment record from December 1991, advanced as being prepared shortly after the subject VA treatment in May 1991, which lists the complaint/symptoms as "prostate troublem [sic] - nervous." The veteran's spouse has provided statements/testimony that the veteran's prostate disorder was either caused or aggravated by action or inaction of the VA physician in May 1991. The veteran has also asserted that she was the person responsible for providing treatment for his prostate condition. She has recently provided a photostatic copy of a certificate from Tyler Junior College dated in June 1989 and indicating that she had successfully completed a course entitled "Medication Aide Update" - 7 Contract Hours; .7 Continuing Education Units. The evidence otherwise essentially establishes that the veteran was first diagnosed with an additional disability, that is, benign prostate hypertrophy, in 1995, nearly four years following the May 1991 treatment for Peyronie's disease. Apart from the spouse's testimony and the purported clinical record from December 1991, there is no clinical evidence or competent medical opinion that the veteran's prostate disorder was either caused or aggravated by any action or inaction of the VA physician in May 1991. The Board obtained a medical expert opinion to ascertain when was a prostate condition first diagnosed and whether it was as likely as not that the prostate disorder was caused or aggravated by VA treatment in 1990-1991, including any treatment for Peyronie's disease. A response was submitted by a physician, the Urology Section Chief of the VA New Jersey HCS. The physician noted that in 1991 the veteran was prescribed Vitamin C and Vitamin E, a not unusual regimen that was consistent with the standard of care for Peyronie's disease. The examiner also noted that there were no complaints of voiding or prostate problems reported in May 1991, such to suggest prostate pathology in 1991. There are no records of findings on digital examination from that time and no findings of an enlarged prostate at that time. The examiner concluded that it was not likely that the veteran's prostatic hypertrophy was caused by VA treatment. Following reopening, the ultimate credibility or weight to be accorded such evidence must be determined as a question of fact. See Kightly v. Brown, 6 Vet. App. 200, 205 (1994). In adjudicating the well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Board once again notes that there are numerous records recently associated with the claims file that have been fabricated. Some examples include the following: (1) the handwritten medical records from A.W. Haddox, M.D.; (2) several typed statements; and (3) the typed statement from Alberto Doria, M.D. The Board finds these records deceptive for several reasons. None of the medical statements were prepared on a physician's letterhead, and the signature on the typed statement from Dr. Doria does not match the one on the 1993 prescription, which is apparently genuine and prepared on authentic letterhead. The letterhead for Dr. Doria's October 1991 treatment notes is an apparent fabrication. The Board notes that the street name where the doctor's office was located was spelled as "Kirt" rather than "Kirk." The date that the treatment was supposedly rendered in December 1991 has clearly been altered. The medical statements from Drs. Doria and Haddox also contain many misspelled common medical terms. Interestingly, the statement from Dr. Haddox contain misspellings of the words "told" as "tolded" and "mask" as "masked," an error frequently made in the veteran's own personal statements. And finally, the Board observes that the 1955 record from Dr. Haddox contains a notation prescribing the veteran Motrin for pain; however, the patent for Motrin was first issued to Boots Pure Drug in 1964, nearly ten years after the veteran claimed that he first used the medication. See The Merck Index, An Encyclopedia of Chemicals, Drugs, and Biologicals 839 (Twelfth edition, 1996). Accordingly, the Board considers that the veteran, as the sponsor of these records, lacks credibility and attaches no probative weight to these obviously altered/forged documents for the purpose of adjudicating the claim. Moreover, the October 1991 typed statement from Dr. Doria suggesting a connection between the May 1991 VA treatment and the veteran's current prostate disorder is without probative value. The statements of the veteran as to his belief that the May 1991 VA physician's actions caused or aggravated his current prostate disorder, are also not competent evidence with regard to this issue. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). There is no evidence that he had the requisite medical expertise to enter a medical judgment as to any relationship between the prior medical treatment and his current prostate disorder. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes that the clinical record from September 1990 through the complained of treatment in May 1991 is entirely silent as to complaints relating to prostate problems or as to voiding difficulties. The Board also observes that such records are fairly detailed as to findings pertaining to other conditions. Accordingly, the Board considers the documented evidence prepared proximate to the complained of treatment more persuasive than any more recently prepared statement as to whether such complaints were made. Moreover, the Board is persuaded from such records that a digital examination was not afforded in the absence of pertinent findings or complaints. The case turns on the remaining evidence, that being the statements and testimony of the veteran's spouse versus that of the physician who provided the September 1999 opinion. The Board observes that the veteran's spouse's principal challenge to the VA treatment in 1991 was the administration of oil. She does not give reasons or a rationale for her inference that the treatment was improper. She seemed to advance a bare assertion that the treatment was an illogical course of management. She does not suggest a more accepted course of treatment for the condition. The Board also observes that the record does not demonstrate that she possesses medical credentials not on a par with a physician. Therefore, the Board assigns greater probative weight to the September 1999 VA physician's report. The evidence against the appellant's claim in terms of the September 1999 physician's report is far more probative and of greater weight than the opinions offered by the veteran's spouse. As a specialist in urology, he possesses greater knowledge of the field and has expressed his opinion in terms of the accepted treatments for the complained of conditions and given reasons for his conclusions. Based on this evidence, it is found that the veteran's prostate disorder was neither either caused or aggravated by any action or inaction of the VA physician in 1990 or May 1991. Accordingly, for the reasons and bases given above, the preponderance of the evidence is against the claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder, and the appellant is not entitled to the application of the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 1991). ORDER No new and material evidence having been submitted, the claim of entitlement to service connection for a psychiatric disorder is denied. Compensation pursuant to 38 U.S.C.A. § 1151 for a prostate disorder is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals