BVA9407787 DOCKET NO. 92-02 632 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a psychiatric disorder based upon a claim of clear and unmistakable error in a 1943 rating decision of the regional office. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.M. Flatley, Associate Counsel INTRODUCTION The veteran had active service from April 1942 to August 1943. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 1990 rating decision of the St. Louis, Missouri, regional office (RO). We initially note that by an October 1943 rating decision, entitlement to service connection for "constitutional psychopathic state, inadequate personality" was denied. The RO informed the veteran by letter dated in December 1943 generally that service connection had been granted for one disability. Although no specific reference was made to a psychiatric disorder, it was noted that service connection had not been allowed for any other disability. No appeal was filed from the determination and as such, the denial of service connection for constitutional psychopathic state, inadequate personality, became final. 38 U.S.C.A. §§ 5108, 7105 (West 1991). We note that in a May 1973 Board decision, entitlement to service connection for a psychiatric disorder was denied. The decision was not related to the 1943 RO determination, which is the subject of this decision. During the current appeal period, however, the representative raised the issue of "clear and unmistakable error" in the 1973 Board decision. In response, we point out that a procedural stay is currently in effect for claims involving allegations of clear and unmistakable error in prior Board decisions. Tobler v. Derwinski, 2 Vet.App. 8 (1991); Smith v. Derwinski, 3 Vet.App. 378 (1992), appeal docketed, No. 93-7043 (Fed. Cir. March 1, 1993). Further, we point out that reconsideration of a prior Board decision is initiated by a formal motion for reconsideration, in accordance with the procedure outlined in Chapter 10 of the Veterans Benefits Administration Manual M21-1 and 38 C.F.R. § 20.1001 (1993). Finally, we note that the issue of clear and unmistakable error in the RO's October 1943 rating decision has been raised. In addition, and ostensibly in the alternative, the issue of whether new and material evidence has been submitted since the Board's 1973 decision to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder has been raised and addressed and developed by the RO. We stress that the Board's May 1973 decision will be addressed below only insofar as it is involved in the discussion of whether new and material evidence has been submitted since that time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the October 1943 RO decision which denied entitlement to service connection for a psychiatric disorder, diagnosed as constitutional psychopathic state, inadequate personality, was clearly and unmistakably erroneous. It is asserted that the basis upon which the RO denied the veteran's claim, that the disorder pre-existed service and was not aggravated thereby, is in error. The veteran alleges that service medical records do not reflect that a psychiatric disorder existed prior to service and that if such a statement exists, it is in error. He further alleges that if a psychiatric disorder existed in service, it occurred subsequent to his fall in service, which was followed by a lengthy hospitalization. It is requested that the Board obtain the opinion of an independent medical expert to reconcile the recorded psychiatric diagnoses. Lastly, it is suggested that review of the veteran's claim on a finality basis should be conducted to determine whether new and material evidence sufficient to reopen his claim has been submitted. 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. 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 there is no clear and unmistakable error in the RO's October 1943 rating decision and that new and material evidence has not been submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The October 1943 RO rating decision, which denied service connection for constitutional psychopathic state, inadequate personality, was consistent with and supported by the evidence then of record. 3. Entitlement to service connection for a psychiatric disorder was denied by a May 1973 Board decision. 4. Evidence submitted since that time consists essentially of statements made by the veteran as to the onset of a psychiatric disorder in service; in essence, the evidence reiterates that which was already of record. 5. The medical question involved in this case, including the reconciliation of psychiatric diagnoses, is not so complex or controversial as to require the opinion of an independent medical expert. CONCLUSIONS OF LAW 1. The October 1943 rating decision of the RO, which denied entitlement to service connection for constitutional psychopathic state, inadequate personality, was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 1991); Veterans Regulation No. 2(a), pt. II, Par. III; VA Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. 2. Evidence received since the Board's May 1973 decision, which denied entitlement to service connection for a psychiatric disorder, is not new and material; the veteran's claim has not been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a)(1993). 3. The May 1973 decision of the Board which denied entitlement to service connection for a psychiatric disorder is a final determination. 38 U.S.C.A. § 7104(b)(West 1991). 4. The opinion of an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(d)(1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Clear and Unmistakable Error in the RO's October 1943 Rating Decision As noted above, the RO denied entitlement to service connection for constitutional psychopathic state, inadequate personality, by an October 1943 rating decision. The law in effect at that time provided that a period of one year was granted from the date of notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that determination became final and was not subject to revision on the same factual basis in the absence of clear and unmistakable error. Veterans Regulation No. 2(a), pt. II, Par. III; VA Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. Clear and unmistakable error has been interpreted as the type of error that, had it not been made, would have manifestly changed the outcome at the time it was made. Russell v. Principi, 3 Vet.App. 310, 313 (1992). It is an error which is undebatable, to the extent that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made, or about which reasonable minds could not differ. Russell, 3 Vet.App. at 313-314. A valid claim of clear and unmistakable error contemplates more than harmless error. Russell, 3 Vet.App. at 313. It is error which occurs as a result of either the absence of the correct facts, as they were known at the time, before the adjudicator, or the misapplication of the statutory or regulatory provisions in effect at that time. Id. In this case, the veteran alleges that the RO erred in determining that his psychiatric disorder pre-existed service and was not aggravated thereby. He stresses that service medical records do not reflect that a psychiatric disorder existed prior to service and that any such statement to that effect is in error. It is asserted that the RO erred in denying entitlement to service connection for hypochondriasis and the residual effects of the psychophysiologic disorder. Relevant evidence of record at the time of the RO's October 1943 rating decision consisted of the veteran's service medical records, which showed normal findings on examination of the nervous system on enlistment in April 1942. A February 1943 medical history entry reflects a six-year history of abdominal distress, and notes that the veteran had been on the sick list for over one hundred days during his nine months of active duty. Psychiatric evaluation resulted in the opinion that the veteran had an inadequate personality, and further observation at a Naval Hospital was recommended. The diagnosis was undetermined. A report of medical history recorded in February 1943 upon the veteran's transfer to a Naval Hospital reflects the veteran's reported history of seven weeks' insomnia, due to "nervousness." Examination led to a diagnostic impression of neurosis. On neuropsychiatric consultation in March 1943, the veteran was found to have a "character neurosis," with a rigid compulsive personality prone to psychosomatic symptoms involving the gastro-intestinal tract. Psychiatric examination revealed stigmatic and hypochondriacal facies. It was noted that the veteran rationalized his conflicts and situations and projected guilt for his shortcomings. The diagnostic impression was constitutional psychopathic state, inadequate personality. The examiner noted that the veteran was unfit for service and that the disorder had existed prior to service. Later in March 1943, the veteran complained of sharp abdominal pain. Examination revealed voluntary guarding, demonstrated by the veteran's complaints of pain on palpation in one instance when focused on the examination and absence of complaint on palpation while the veteran was otherwise occupied. The diagnosis was changed in April 1943 from colitis to constitutional psychopathic state, inadequate personality. A Board of Medical Survey convened in June 1943; the associated report reflects that the veteran had reported a variety of types of abdominal stress during the previous six years. It was noted that a right herniotomy and appendectomy produced no appreciable results and that, as a result, the veteran had been unable to maintain steady employment. The Board stressed that of the veteran's fourteen months of service, 210 days were spent on the "sick list." It was noted that while hospitalized, the veteran's complaints had continued. Neuropsychiatric examination revealed essentially similar results; the diagnosis of constitutional psychopathic state, inadequate personality, was continued. As reflected in an associated medical record, it was determined that the veteran's disability was not incurred in the line of duty and that it pre-existed service and was not aggravated thereby. Discharge from service was recommended and accomplished. In its October 1943 denial of service connection, the RO determined that the veteran's constitutional psychopathic state, inadequate personality, was in the nature of a constitutional or developmental abnormality, and was not a disability under the law. As indicated above, the RO relied solely upon the veteran's service medical records in reaching a determination with respect to his service connection claim. Review of such records clearly reflects that upon close observation during hospitalization and upon multiple examinations, the symptomatology experienced by the veteran was attributed to a constitutional abnormality. A long history of somatic complaints, including pre-service, was noted. The veteran's symptoms were unimproved with treatment, and in-service examination ultimately determined that the complaints were attributable to a constitutional abnormality. We stress that the RO had no basis upon which to allow service connection for hypochondriasis and residuals of a psychophysiologic disorder. The RO relied upon the veteran's service medical records in reaching its determination in October 1943. Such records showed that the veteran's symptomatology pre-service was similar to that which he experienced in service, and, as noted above, his history was considered in determining the appropriate diagnosis in service. Service medical records revealed that upon extensive evaluation, the veteran's complaints were attributable to a constitutional abnormality, for which service connection could not be allowed. The United States Veterans' Administration Schedule for Rating Disabilities (2d ed. 1933). The RO therefore relied upon contemporaneous clinical data associated with the veteran's in- service complaints and history and representing, in part, the observations and diagnoses of those directly in contact with the veteran. The conclusion reached by the RO was consistent with the evidence of record at that time. There is no indication that an error was committed which is undebatable, or about which reasonable minds could not differ. Russell, 3 Vet.App. at 313-314. On the contrary, the determination reached by the RO was fully supported by the evidence of record at that time. Accordingly, the Board concludes that no clear and unmistakable error is found in the RO's October 1943 rating decision. Although the record does not contain a diagnosis of a psychiatric disorder prior to service, as stressed by the veteran, the veteran's pre-service history was consistent with his complaints in service, at which time an organic basis for the veteran's complaints was ruled out and a constitutional or personality disorder was diagnosed. We stress that although the veteran's argument that a psychiatric disorder was not shown prior to service may have merit from a technical standpoint, we emphasize that the issue in this case is whether the RO committed clear and unmistakable error. The RO's determination was clearly in accordance with the evidence of record, as shown above. No error is demonstrated. We also recognize the veteran's argument that an error was committed by the RO in its failure to consider the presumption of soundness in his claim of entitlement to service connection for constitutional psychopathic state, inadequate personality. In response, the Board points out that, in accordance with regulatory guidelines in effect at that time, as now, neuropsychiatric conditions of hereditary, congenital, or developmental origin, such as constitutional psychopathic states, were not considered disabilities under the law. The United States Veterans' Administration Schedule for Rating Disabilities (2d ed. 1933). As discussed in the RO's October 1943 rating decision, the veteran's disorder was not considered a disability for VA purposes; any potential for an allowance of service connection for the veteran's disorder was, therefore, ruled out. As such, there was no occasion to consider the presumption of soundness, and this aspect of the veteran's argument is also without foundation. Lastly, we note the veteran's assertion that his psychiatric disorder occurred after a fall in service. The veteran's allegation in this regard appears to refer to error committed by the RO in its failure to consider the onset of the veteran's disorder as a result of a fall rather than as a pre-existing disorder. In light of the remaining evidence of record, however, the veteran's argument in this regard is not substantiated, and does not represent the type of error which is undebatable, to the extent that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made, or about which reasonable minds could not differ. Russell, 3 Vet.App. at 313-314. As discussed above, the RO's determination with respect to the onset of the veteran's psychiatric disorder was fully supported by the evidence of record. As also discussed above, the evidence of record before the RO in 1943 showed that the veteran's psychiatric disorder was a personality disorder without an organic basis, for which service connection could not be granted, regardless of when it was first noted. The veteran's allegation of error in this regard is without foundation. II. New and Material Evidence Subsequent to the Board's May 1973 Denial In addition to the veteran's service medical records, set forth in detail above, evidence of record when the Board considered entitlement to service connection for a psychiatric disorder in May 1973 also included a report of a September 1954 VA hospitalization, which reflects the veteran's complaints of pain in the precordial region and in the lower quadrant of the abdomen. Organic bases for the veteran's complaints were not found during hospitalization, and the diagnoses were psychophysiologic gastrointestinal reaction and mild anxiety state. Generalized lower abdominal soreness was also noted on VA hospitalization in September 1955. Examination during hospitalization revealed the veteran to be tense and anxious. Pertinent findings were otherwise essentially absent during the hospitalization. The discharge diagnosis was amebiasis, carrier state. Evidence considered by the Board also included a March 1962 VA hospitalization report which reflects the veteran's complaints of lower abdominal pain. The veteran reported tension and nervousness and stated that the pain was more pronounced when he was "unusually" nervous. On examination, it was determined that the veteran's complaints were functional in origin. The discharge diagnosis was psychophysiologic musculoskeletal reaction, manifested by pain in the back and abdomen. A report of the veteran's VA hospitalization in February 1964 reflects the veteran's continued complaints of abdominal pain. The pain was determined to be functional and a discharge diagnosis of psychophysiologic gastro-intestinal reaction, manifested by abdominal fullness, was made. Statements from S. D. Roper, M.D., dated in June 1972 and from V. P. McCormick, D.O., dated in June 1972 reflect no pertinent findings with respect to a psychiatric disorder. Diagnoses of possible cervical disc syndrome or cervical arthritis and radiculitis and angina of undetermined etiology were made. Also of record were letters received from William O. Quick, M.D., dated in May and June 1972, which refer to diagnosis and treatment of the veteran's cervical osteoarthritis. On special VA psychiatric examination in July 1972, it was noted that the veteran had complained of stomach pain since service. He reported occasional nervousness. Clinical findings were essentially unremarkable. A diagnosis of chronic psychoneurotic anxiety reaction with somatization of complaints was made. Evidence added to the record since the Board's 1973 denial of service connection essentially consists of statements made by the veteran that a psychiatric disorder did not exist prior to service and that the disorder first became manifest while on active duty. While the veteran's statements are generally more specific with regard to his psychiatric disorder than those which were made in association with his 1973 claim, the statements do not change the substance of the case. Upon review of the record in its entirety, we conclude that evidence added to the record since the Board's final May 1973 decision is neither new nor material. 38 U.S.C.A. §§ 5108, 7104. New evidence is that which is not cumulative of other evidence of record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is that which is relevant and probative of the issue at hand. Id. New and material evidence is evidence which, when considered in the context of all of the evidence, both new and old, would change the outcome of the case. Colvin, 1 Vet.App. at 174; Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). In this respect, we point out that evidence submitted since 1973 consists of statements submitted by and on the behalf of the veteran which essentially reiterate his former arguments and stress aspects of evidence previously of record. It is, in essence, cumulative of other evidence of record. We recognize that additional arguments were also raised since the Board's 1973 decision. The representative argues, for example, that the Board's conclusion was against the medical evidence of record, and that a diagnosis of anxiety state, mild, made on VA hospitalization in 1954 more clearly represents the veteran's disability. In response, we point out that the Board considered the entire evidence of record in 1973, including the diagnosis made during hospitalization in 1954. The representative's attempt to place more emphasis on the diagnosis of anxiety at this time does not alter the essential state of the record, and does not equate to evidence which would change the outcome of the veteran's case. Overall, although arguments made during the current appeal period may be considered new, they are not material, as they are not relevant and probative of the issue of in-service incurrence of a psychiatric disorder, and do not present a reasonable possibility of a change in the outcome of the veteran's case. Id. The Board concludes, therefore, that new and material evidence sufficient to reopen a claim of entitlement to service connection for a psychiatric disorder has not been submitted The Board notes that the failure to consider an applicable regulation may be sufficient, under certain circumstances, to reopen a final claim of entitlement to benefits, essentially considering the applicable regulation "new and material evidence." Jensen v. Brown, No. 93-7067, slip op. at 5 (Fed. Cir. March 22, 1994). In this case, we stress that the issue of whether new and material evidence has been submitted is limited to consideration of evidence submitted or presented since the final 1973 Board decision. Review of that decision reflects that the Board considered and discussed application of the presumption of soundness in the veteran's case; as such, the concept of the presumption of soundness and its application in the veteran's current appeal does not constitute new and material evidence in this case. III. Additional Consideration The Board notes the veteran's request that an opinion of an independent medical expert be obtained. We note, however, that with regard to the veteran's clear and unmistakable error allegation, a request for such development is moot, as it would not impact upon the analysis of the veteran's case in that regard. As to the issue of whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder, the Board has concluded that such evidence has not been submitted and that the veteran's claim is not reopened. Under the circumstances in this case and the type of "evidence" that the veteran has requested that the VA obtain, the duty to assist does not include obtaining an independent medical expert's opinion. See White v. Derwinski, 1 Vet.App. 519 (1991). ORDER Entitlement to service connection for a psychiatric disorder, on the basis of a claim of clear and unmistakable error in an October 1943 RO rating decision, is denied. New and material evidence has not been submitted to reopen a claim of entitlement to service connection a psychiatric disorder. The benefit sought on appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WILLIAM J. REDDY HARRY M. McALLISTER, M.D. M. SABULSKY 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.