Appellant appeals a Board of Veterans’ Appeals (Board or BVA) decision, dated June 8, 1989, which denied service-connected disability benefits for appellant’s psychiatric disability. The Secretary of Veterans Affairs (Secretary) has submitted a Motion for Remand. Appellant submitted an affidavit in opposition to the Secretary’s motion. The Court has jurisdiction over this case pursuant to 38 U.S.C.A. § 7252 (West 1991).
I. FACTUAL BACKGROUND
The veteran served in the United States Army from February 1980 to February 1981. Prior to his enlistment in April 1978, appellant was hospitalized for thirteen days for symptoms of paranoid schizophrenia. Nevertheless, appellant’s service entrance examination report from January 1980 indicated normal psychiatric findings, and appellant was rated qualified for duty. In his report of medical history, appellant denied having been treated for a mental condition. Sometime in June 1980, appellant was assigned to duty at the U.S. Military Academy, at West Point, New York. Appellant claims that during his tour of duty he had difficulty coping with army life and was harassed by other soldiers. As a result of the stress, the veteran left his duty post without authorization and returned to his mother’s home, where he remained for about twenty-five days. The mother reported that during his stay appellant was moody, lacked personal hygiene, and did not sleep well. Initially she controlled his symptoms by medicating his orange juice and milk. When the supply of medication ran out, she called the military authorities to take appellant to a psychiatric hospital. In November 1980, the veteran was referred to the Walter Reed Army Medical Center for psychological testing. Appellant was diagnosed as suffering from schizophrenia, residual type, subchronic, and was deemed unfit for further military duty. In January 1981, a medical evaluation board determined that appellant’s psychiatric condition was abnormal and that he was unqualified for duty. Appellant indicated that he did not wish to continue active duty and signed a “Disposition Form” stipulating that he requested discharge for “physical disability based upon ... disability that was found to have existed prior to ... entry into active service.” He further stipulated that the medical board “found the disability neither incident to, nor aggravated by, [his] military service.” (emphasis added).
In February 1981, appellant claimed service connection for schizophrenia. In support of his claim, appellant submitted hospital records from the Psychiatric Inpatient Unit of the Coney Island Hospital from June 1981, where he was admitted after assaulting his father and threatening to kill his mother. These records show that appellant was again diagnosed with paranoid schizophrenia, and referred to a psychiatric center for further treatment. In addition, appellant submitted a medical record from the Day Treatment Center of the Coney Island Hospital showing treatment received from August to November 1981. Appellant’s claim for service connection was apparently denied. An appeal was taken to the BVA, which again denied the claim. The Board reasoned that “[t]he underlying pathology of the veteran’s schizophrenia was consistent before, during, and after service; and no increase ... is shown to have [been] incurred during service.” Alex V Guerrieri, 82-39089 BVA, at 35-36 (Apr. 11, 1983). The Board concluded that “[t]he presumption of soundness at entry
The veteran reopened his claim for a psychiatric disorder in 1985. On May 1, 1987, the BVA issued a decision denying appellant’s claim. The new evidence considered by the Board consisted of: private medical reports showing appellant was treated in 1978 for psychotic behavior and received treatment after service; letters from physicians opining a causal relationship between the stress the veteran experienced in service and worsening of his condition; personal hearing testimony; letters from appellant’s mother and pastor; and college transcripts. Subsequent to the May 1 decision, the veteran submitted letters from Joseph G. Frechen, M.D., and David Plimpton, Ph.D., of South Beach Psychiatric Center, who treated appellant during 1985 to 1987. Both individuals stated that, in their opinions, the stresses of service aggravated appellant’s condition. The veteran also gave sworn testimony during a personal hearing at the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office in New York City held on March 25, 1988. At that time appellant testified that the Army had authorized his enlistment with full knowledge of his prior psychiatric treatment. He also testified that during service he attempted suicide, was handcuffed to a fence, and was shot at by fellow soldiers. Following the hearing, the rating board denied the veteran’s claim. In June 1989, the BVA again denied appellant’s claim for service connection for a psychiatric disability in the decision now on appeal before the Court.
II. ANALYSIS
A.
In its decision, the BVA concluded that the evidence submitted since the Board’s May 1987 decision does not provide a new factual basis which establishes entitlement to service connection. This determination relies on an analysis that has since been discredited by this Court’s holding in Manio v. Derwinski,
The question of whether evidence is new and material is a conclusion of law, which this Court reviews de novo. See Smith v. Derwinski,
The Secretary argues in his brief that the medical opinions offered by appellant’s treating psychiatrist, Dr. Frechen, and his treating psychologist, Dr. Plimpton, were not new because they are similar to evidence previously considered by the Board. The Court holds that the statements of Dr. Frechen and Dr. Plimpton are not “merely cumulative” under this Court’s precedent. Colvin,
B.
The BVA decision does not cite medical evidence of record to support its conclusion that the new evidence submitted by appellant “did not establish that there was any increase in the severity of the veteran’s preexisting psychiatric disability during his active military duty.” Guerrerri, BVA 89-03100, at 6. The BVA is prohibited from asserting its own unsubstantiated medical opinion. Colvin,
In addition to failing to address meaningfully the new medical opinion evidence, the Board failed to articulate reasons or bases for its finding that appellant’s preexisting psychiatric disorder was not aggravated in service. See 38 U.S.C.A. § 7104(d)(1) (West 1991); Gilbert v. Derwinski,
III. THE “TREATING PHYSICIAN RULE”
Appellant and the National Veterans Legal Services Project, as amicus curiae, urge the Court to adopt the “treating physician rule” (the Rule), as applied by the majority of federal courts in evaluating claims for disability benefits under the Social Security Act. 42 U.S.C.A. § 301 et seq. (West 1991). The Rule “governs the weight to be accorded to the medical opinion of the claimant’s treating physician relative to other evidence before the factfin-der, including the opinions of other physi-
[The] treating source’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is (i) binding on the factfinder unless contradicted by substantial evidence; and (ii) entitled to some extra weight, ... although resolution of genuine conflicts between the opinion of the physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder.
Schisler,
The “Rule” was formulated specifically to address problems generated by the Social Security system, where the factfinder must weigh the diagnosis of a claimant’s physician against the opinions of Social Security’s consulting physicians. The Rule is applied to help resolve conflicting medical evidence by giving legal recognition to the assumption that a Social Security claimant’s own treating doctor is the physician best able to present a complete picture of the claimant’s medical condition. Id.
Judicial application of the “treating physician rule” to Social Security cases is grounded in statute. In 1984, Congress amended the Social Security Act to provide that in making a disability determination “the Secretary [of Health and Human Services] shall make every reasonable effort to obtain from the individual’s treating physician ... all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source_” 42 U.S.C.A. § 423(d)(5)(B) (West 1991). See Social Security Reform Act of 1984, Pub.L. No. 98-460, § 9(b)(2). The Secretary argues that no similar controlling legislation applies to the VA and that application of the Rule is contravened by VA statutes and regulations. First, unlike the Social Security Administration, the VA operates its own system of medical facilities for the care and treatment of veterans. The statute provides:
There is in the [VA] a Veterans Health Administration_ The primary function of the Administration is to provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary pursuant to this title.
38 U.S.C.A. § 7301(a), (b) (West 1991). Pursuant to this statutory authority, the VA promulgated regulations which require VA examinations of veterans to be conducted as part of the evaluative process for claims of service connection. See 38 C.F.R. §§ 3.326 and 3.327 (1992). The availability of care at VA medical facilities means that VA physicians will often be the veteran’s “treating physician.”
While the “treating physician rule” is helpful in resolving physician’s conflicting diagnoses in the context of Social Security claims, it is not suitable for application to the issue of service connection of a veteran’s disabilities. The “Rule” is applied in Social Security cases in order to determine whether a claimant is “under a disability or continues to be under a disability,” and in determining “diagnosis and nature and degree of impairment.” Schisler,
The Court has held that “[t]he conclusion of the examining VA psychiatrist is a medi
In the past, when urged to do so, this Court has declined to adopt a rule that accords greater weight to the opinions of treating physicians. Chisem v. Brown,
IV. CONCLUSION
Accordingly, the Secretary’s motion for remand is GRANTED, and the June 8, 1989, decision of the Board is VACATED and REMANDED for further proceedings consistent with this opinion.