Citation Nr: 0118465	
Decision Date: 07/16/01    Archive Date: 07/24/01

DOCKET NO.  00-20 582A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1. Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for an 
acquired psychiatric disorder.

2. Entitlement to Special Monthly Pension (SMP).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. A. Kultgen, Associate Counsel



INTRODUCTION

The veteran had active service from May 1964 to April 1970. 

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a July 2000 rating decision from the Boise, 
Idaho, Department of Veterans Affairs (VA) Regional Office 
(RO), which found that new and material evidence adequate to 
reopen the claim for service connection for an acquired 
psychiatric disorder and post-traumatic stress disorder 
(PTSD) had not been submitted.  The RO further denied 
entitlement to SMP.  A notice of disagreement was received in 
July 2000; a statement of the case was issued in July 2000; 
and a substantive appeal was received in October 2000.  

In March 2001, the veteran withdrew his appeal on the issue 
of whether new and material evidence had been submitted for 
his claim for service connection for PTSD.  A substantive 
appeal may be withdrawn in writing at any time before the 
Board promulgates a decision.  38 C.F.R. § 20.204(b) (2000).  
Therefore, that issue is not before the Board.  

The Board notes that in December 2000, the veteran, through 
his representative, filed a claim for service connection for 
type II diabetes mellitus, noting that the veteran served in 
Vietnam.  The Board recognizes that pertinent regulations 
were recently amended with regard to certain veterans with 
specified service in Vietnam who have been diagnosed with 
type II diabetes mellitus.  66 Fed. Reg. 23166-23169 (May 8, 
2001).  This issue has not yet been considered by the RO.  
Therefore, the issue of entitlement to service connection for 
diabetes mellitus, including on a presumptive basis due to 
alleged herbicide exposure, is referred to the RO for further 
development and adjudication as necessary.  



FINDINGS OF FACT

1. By decision dated in September 1977, the Board denied 
service connection for an acquired psychiatric disorder.  

2. Additional evidence in support of the veteran's claim of 
entitlement to service connection for an acquired 
psychiatric disorder, received since the September 1977 
Board decision, is either duplicative or cumulative of 
evidence previously submitted, and does not bear directly 
and substantially upon the specific matter under 
consideration.

3. The veteran is not a patient in a nursing home on account 
of mental or physical incapacity; he is not blind or 
nearly blind with corrected vision of 5/200 or less in 
both eyes, or with central field of vision of 5 degrees or 
less.  His disabilities do not render him unable to care 
for his daily needs or to protect himself from the hazards 
and dangers incident to his daily living environment or 
render him permanently housebound or bedridden.


CONCLUSIONS OF LAW

1. The September 1977 Board decision denying service 
connection for an acquired psychiatric disorder is final.  
38 U.S.C.A. § 7104(b) (West 1991 & Supp. 2000); 38 C.F.R. 
§ 20.1100 (2000).

2. No new and material evidence has been received to reopen 
the veteran's claim of entitlement to service connection 
for an acquired psychiatric disorder.  38 U.S.C.A. § 5108 
(West 1991); Veterans Claims Assistance Act of 2000 
(VCAA), Pub. L. No. 106-576, 114 Stat. 2096, (2000); 38 
C.F.R. § 3.156(a) (2000).

3. The criteria for special monthly pension based on the 
veteran's need for the regular aid and attendance of 
another person or being housebound have not been met.  38 
U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.351, 
3.352(a) (2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Factual Background

The veteran filed an initial claim for service connection for 
"general emotional state" in January 1975.  In May 1976, 
the RO denied service connection for personality disorder, 
mixed emotionally, unstable personality with paranoia as a 
constitutional or developmental abnormality.  The veteran 
perfected an appeal to this decision with a notice of 
disagreement filed in June 1976, and a substantive appeal 
filed in September 1976, following issuance of the statement 
of the case in September 1976.  

In September 1977, the Board found that the requirements for 
service connection for an acquired psychiatric disorder had 
not been met.  The Board noted that the veteran was diagnosed 
during service with emotional lability, intolerance to 
stress, sociopathic acting out, poor judgment, resistance to 
responsibility and impulsive resistance to authority.  The 
Board also noted the finding of psychiatric examination in 
April 1975, which provided diagnoses of mixed personality 
disorder, emotionally unstable personality, and paranoia.  
Psychiatric examination in June 1976 also reported a 
diagnosis of personality disorder.  The veteran was notified 
of this decision under cover letter dated in September 1977.  
The Board decision is final as to evidence of record at the 
time.  38 U.S.C.A. § 7104(b) (West 1991 & Supp. 2000); 38 
C.F.R. § 20.1100 (2000).

In July 1988, the Board issued a decision on appeal regarding 
whether any injuries sustained by the veteran in a May 1967 
automobile accident were due to his own willful misconduct.  
As noted above, the veteran served on active duty from 
May 1964 to April 1970.  The veteran sustained a back injury, 
severe rain concussion, and lacerations of the head and body 
in the May 1967 motor vehicle accident.  Based on a blood 
test, the veteran was charged and convicted with driving 
under the influence, but this conviction was stricken in 
1984, as the District Court of the State of Idaho determined 
that the blood was withdrawn without the veteran's consent 
and without advising the veteran of his constitutional 
rights.  The Board found that the veteran's operation of a 
vehicle at a high rate of speed, at night, on a portion of 
highway, which he knew was poor, while under the influence 
of intoxicants, established a wanton and reckless disregard 
of the probable consequences.  The Board concluded that the 
veteran's injuries sustained in the May 1967 automobile 
accident were due to his own willful misconduct.  As that 
decision has not been reopened, the Board will not now 
readdress the issues therein.  

In November 1988, the veteran filed a claim for service 
connection for a stress disorder.  By rating decision in June 
1989, the RO denied the veteran's claim for service 
connection for stress disorder or other acquired psychiatric 
disorder.  The veteran timely perfected an appeal to this 
decision.  In September 1991, the Board denied service 
connection for PTSD, as there was no diagnosis of that 
disorder in the service or post-service medical records.  The 
veteran was notified of this decision under cover letter 
dated in September 1991.  The veteran did not appeal this 
decision to the United States Court of Appeals for Veterans 
Claims (known as the United Stated Court of Veterans Appeals 
prior to March 11, 1999) (Court).  Although the veteran's 
claim with regard to PTSD was withdrawn by the veteran, the 
Board notes this previous decision to demonstrate that the 
veteran's psychiatric condition has been the subject of other 
Board adjudication.

The veteran filed a request to reopen his claim for service 
connection for anxiety in May 1992.  The evidence, submitted 
since the final Board decision in September 1977, includes 
service medical records, statements from the veteran and his 
ex-spouse, a VA examination, and VA outpatient psychiatric 
treatment records.  The veteran's service medical records 
contain no diagnosis of any psychiatric disorder.  

In November 1993, the RO provided notice to the veteran's 
fiduciary that the claims for PTSD and anxiety had been 
previously denied.  The fiduciary was not notified that new 
and material evidence was necessary should the veteran wish 
to reopen his claims.  In March 1999, the veteran again 
indicated that he wished to apply for service connection for 
PTSD, schizophrenia, and paranoia as a result of his service 
in Vietnam.  The veteran reported the following stressors as 
the cause of his psychiatric condition:  robbed of $80 during 
boot camp; hit in the face with rolled up newspaper; 
"stomped in kidneys;" witnessed "two guys get heads bashed 
in" at Yokohama, Japan; his unit in Vietnam came under fire; 
witnessed beatings allegedly due to race; and during leave, 
he was kidnapped at gun point.  

The record contains VA outpatient treatment records showing 
psychiatric treatment from January 1977 to April 1977, 
October 1988 to February 1989, June 1989 to March 1990, and 
from March 1998 to March 1999.  The only diagnoses reported 
in these records are personality changes, personality 
disorder, organic personality disorder, and rule out PTSD.  
The records contain no diagnosis of any acquired psychiatric 
disorder.  The veteran was also hospitalized in July 1989 
with a diagnosis of personality disorder (possibly organic) 
with impulsive behavior and some aspects of paranoia and 
PTSD.  No separate diagnosis of PTSD was provided.  A VA 
psychiatric examination in April 1990 provided diagnoses of 
alcohol dependency and organic personality syndrome with 
paranoid passive aggressive borderline sociopathic features.  

A VA examination for aid and attendance was conducted in June 
2000, and the examiner noted that the claims file was not 
available, but the medical records were reviewed.  The 
examiner noted that the veteran was diagnosed with diabetes 
mellitus in June 1999, treated with insulin.  The examiner 
further noted that the veteran was seen at the Eye Clinic in 
June 1999 with an assessment of myopia with astigmatism and 
early cataracts.  The examiner noted that there was no 
indication in the medical records of blindness.  The veteran 
lived at home with his son.  He has no nursing assistant, is 
not bed ridden or hospitalized, and the veteran reported that 
he managed his own finances.  The veteran stated that he was 
able to drive, but was sometimes hesitant due to reported 
panic attacks.  He and his son had divided the household 
chores and the veteran would do the dishes.  The veteran 
reported that he spent most of his day watching television, 
but would leave the house for daily long walks on his 
property.  

The veteran stated in his notice of disagreement, received in 
July 2000, that his stressors during service were "more than 
enough...to have PTSD."  He reported that his VA "shrinks" 
had diagnosed PTSD, but indicated that it was not service 
connected.  The veteran also stated that he was legally blind 
from May to December 1999.  In his VA Form 9, substantive 
appeal, received in October 2000, the veteran stated that for 
this period he was very sick and weak due to undiagnosed 
diabetes.

By letter, dated in November 2000, T.K., O.D., the Optometry 
Clinic Director at the VA Medical Center (MC), stated that 
the veteran's undiagnosed Type II diabetes mellitus caused 
his vision to deteriorate to the point of being unable to 
function visually for six months.  Once the diabetes mellitus 
was under control, the veteran's vision stabilized and 
returned to normal.  Dr. T.K. stated that the veteran did not 
come in to the eye clinic during this period, so he could not 
comment on the veteran's visual acuity during this period, 
except that - by report of the veteran - his vision was 
"indeed decreased."  

II. Analysis

Veterans Claims Assistance Act of 2000

On November 9, 2000, the President signed into law the VCAA, 
Pub. L. No. 106-475, 114 Stat. 2096 (2000).  This newly 
enacted legislation provides, among other things, for notice 
and assistance to claimants under certain circumstances.  
Where laws or regulations change after a claim has been filed 
or reopened and before the administrative or judicial process 
has been concluded, the version most favorable to the 
appellant will apply unless Congress provided otherwise or 
has permitted the Secretary of Veterans Affairs to do 
otherwise and the Secretary has done so.  Karnas v. 
Derwinski, 1 Vet. App. 308 (1991).

After reviewing the claims file, the Board finds that there 
has been substantial compliance with the assistance 
provisions of the new legislation.  The record includes VA 
psychiatric outpatient records and statements by the veteran 
as to inservice stressors.  Significantly, no additional 
pertinent evidence has been identified by the veteran.  The 
Board therefore finds that the record as it stands is 
adequate to allow for equitable review of the veteran's 
appeal. 

Further, the veteran and his representative have been 
notified of the applicable laws and regulations which set 
forth the criteria for reopening a claim for service 
connection for a psychiatric disorder.  The discussions in 
the rating decision, statement of the case, and supplemental 
statement of the case, as well as previous Board decisions, 
have informed the veteran and his representative of the 
information and evidence necessary to warrant entitlement to 
the benefit sought.  The Board therefore finds that the 
notice requirements of the new law have been met. 

Under the circumstances of this case where there has been 
substantial compliance with the VCAA, a remand would serve no 
useful purpose.  See Soyini v. Derwinski, 1 Vet.App. 540, 546 
(1991) (strict adherence to requirements in the law does not 
dictate an unquestioning, blind adherence in the face of 
overwhelming evidence in support of he result in a particular 
case; such adherence would result in unnecessarily imposing 
additional burdens on VA with no benefit flowing to the 
veteran); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) 
(remands which would only result in unnecessarily imposing 
additional burdens on VA with no benefit to flowing to the 
veteran are to be avoided).  Moreover, given the completeness 
of the present record which shows substantial compliance with 
the notice/assistance provisions of the new legislation, the 
Board finds no prejudice to the veteran by proceeding with 
appellate review despite the fact that implementing 
regulations have not yet been promulgated.


New and Material Evidence

When a claim is finally denied by the Board, the claim, 
generally, may not thereafter be reopened and granted and a 
claim based upon the same factual basis may not be 
considered.  38 U.S.C.A. § 7105(c) (West 1991).  However, if 
new and material evidence is presented or secured with 
respect to a claim which has been denied, the Secretary shall 
reopen the claim and review the former disposition of the 
claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  The Board 
observes that the VCAA specifically notes that nothing in the 
Act shall be construed to require the Secretary to reopen a 
claim that has been disallowed except when new and material 
evidence is presented or secured, as described in 38 U.S.C.A. 
§ 5108.  See VCAA, § 3 (to be codified at 38 U.S.C. § 
5103A(f)). 

New and material evidence means evidence not previously 
submitted, which is neither cumulative nor redundant, and 
bears directly and substantially upon the specific matter 
under consideration, 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); see Hodge v. West, 155 F.3d 
1336  (Fed. Cir. 1998). In Hodge v. West, 155 F.3d 1356, 1363 
(Fed. Cir. 1998), the United States Court of Appeals for the 
Federal Circuit noted that new evidence could be sufficient 
to reopen a claim if it could contribute to a more complete 
picture of the circumstances surrounding the origin of a 
veteran's injury or disability, even where it would not be 
enough to convince the Board to grant a claim.  

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

The veteran's claims for service connection for a psychiatric 
disorder have been previously denied by the RO and the Board.  
The claimed benefit was denied as the medical evidence did 
not contain a diagnosis of any acquired psychiatric disorder, 
including PTSD.  The evidence submitted since the last final 
denial of service connection for an acquired psychiatric 
disorder in September 1977 (the decision in September 1991 
was limited to the issue of PTSD, a claim the veteran has 
currently withdrawn) contains no medical diagnosis of any 
acquired psychiatric disorder.  The veteran has been 
consistently diagnosed by psychiatric professionals with a 
personality disorder.  Personality disorders and mental 
deficiency as such are not diseases or injuries within the 
meaning of the legislation.  38 C.F.R. § 3.303(c) (2000).  

Although the veteran has submitted new evidence since the 
September 1977 decision, none of the evidence shows a medical 
diagnosis of an acquired psychiatric disorder.  The veteran's 
statements and the statements of his ex-spouse show the 
veteran's current symptom complex and his reported stressors 
during service.  However, such evidence is not material to 
the veteran's claim, as a claim for service connection for a 
disability must be accompanied by medical evidence that 
establishes that the claimant currently has the claimed 
disability.  Absent proof of a present disability there can 
be no valid claim.  See, e.g., Gilpin v. West, 155 F.3d 1353 
(Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 
(Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  
Since the evidence submitted is not material to the veteran's 
claim, the claim is not reopened.  

Special Monthly Pension

The veteran is asserting a claim for special monthly pension 
benefits based on the need for regular aid and attendance of 
another person or on account of being housebound.  Generally 
aid and attendance means helplessness or being so nearly 
helpless as to require the regular aid and attendance of 
another person.  38 C.F.R. § 3.351(b). 

A veteran is considered in need of regular aid and attendance 
if he or she: (1) is blind or so nearly blind as to have 
corrected visual acuity of 5/200 or less, in both eyes, or 
concentric contraction of the visual field to 5 degrees or 
less; or (2) is a patient in a nursing home because of mental 
or physical incapacity; or, (3) establishes a factual need 
for aid and attendance under the criteria set forth in 
§ 3.352(a).  38 C.F.R. § 3.351(c).  

There is no competent medical evidence that the veteran's 
condition meets the criteria for special monthly pension for 
blindness.  None of the medical examinations of record 
contain a finding of bilateral visual acuity of 5/200 or less 
nor of contraction of the visual field to 5 degrees or less.  
Although decreased visual acuity was reported by Dr. T.K., 
the physician did not indicate that the veteran was blind and 
specifically stated that the veteran had not sought treatment 
at the eye clinic during the pertinent period.  

The veteran does not contend that he is a patient in a 
nursing home, but the Board must consider whether the 
evidence of record establishes a factual need for aid and 
attendance.  The following criteria are accorded 
consideration in determining the factual need for regular aid 
and attendance:  inability of claimant to dress or undress 
himself, or to keep himself ordinarily clean and presentable; 
frequent need of adjustment of any special prosthetic or 
orthopedic appliances which by reason of the particular 
disability cannot be done without aid (this will not include 
the adjustment of appliances which normal persons would be 
unable to adjust without aid, such as supports, belts, lacing 
at the back, etc.); inability of claimant to feed himself 
through loss of coordination of upper extremities or through 
extreme weakness; inability to attend to the wants of nature; 
or incapacity, physical or mental, which requires care or 
assistance on a regular basis to protect the claimant from 
hazards or dangers incident to his or her daily environment.  
38 C.F.R. § 3.352(a).  The evidence of record preponderates 
against a finding of a factual need for aid and attendance.  
The VA examination in June 2000 reported that the veteran was 
able to take care of himself, including care of his medical 
needs and household chores.  

A person will also meet the criteria for aid and attendance 
if he or she is bedridden.  38 C.F.R. § 3.352(a).  Bedridden 
is that condition which, through its essential character, 
actually requires that the claimant remain in bed.  The fact 
that the claimant has voluntarily taken to bed or that a 
physician has prescribed rest in bed for the greater or 
lesser part of the day to promote convalescence or cure will 
not suffice.  38 C.F.R. § 3.352(a).  There is no evidence of 
record that the veteran meets these criteria.  

If a veteran is entitled to a nonservice-connected pension, 
which the veteran in the instant claim is receiving, but is 
not in need for regular aid and attendance, he may meet the 
criteria for special monthly pension by being housebound.  
38 C.F.R. § 3.351(d) (2000).  To so qualify, the veteran must 
have a single disability rated 100 percent disabling under 
the Schedule for Rating Disabilities and have additional 
disability or disabilities independently ratable at 
60 percent or more, separate and distinct from the permanent 
disability rated as 100 percent disabling and involving 
different anatomical segments or bodily systems.  The veteran 
can also meet the criteria for special monthly compensation 
if he has a single permanent disability rated 100 percent and 
is "permanently housebound" by reason of his disability or 
disabilities.  38 C.F.R. § 3.351(d).  This requirement of 
"permanently housebound" is met when the veteran is 
substantially confined to his or her dwelling and the 
immediate premises or, if institutionalized, to the ward or 
clinical area, and it is reasonably certain that the 
disability or disabilities and resultant confinement will 
continue throughout his or her lifetime.  38 C.F.R. § 
3.351(d).

The veteran does have a single nonservice-connected 
disability rated at 100 percent, organic personality syndrome 
with paranoid passive aggressive sociopathic features.  
However, the veteran's remaining disabilities, including his 
service-connected post-operative residuals of right hand 
injury do not amount to an additional 60 percent combined 
evaluation.  There is no evidence that the veteran is 
permanently housebound.  The VA examination in June 2000 
noted that the veteran was not confined to his home nor was 
he institutionalized.  The evidence of record preponderates 
against award of a special monthly pension based on aid and 
attendance or housebound status.  


ORDER

The appeal is denied as to both issues.


		
	ALAN S. PEEVY
	Member, Board of Veterans' Appeals