Citation Nr: 1751087 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-05 360 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1968 to July 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision from the RO in Jackson, Mississippi. This claim was previously before the Board in November 2016. The Board remanded this claim to the RO for readjudication. The appeal has returned to the Board. FINDINGS OF FACT 1. In an October 1999 rating decision, the RO denied service connection for PTSD based on a finding that the Veteran did not engage in combat and that none of his stressors had been corroborated. The Veteran was notified of this determination in a November 1999 letter, to include his right to appeal the denial. 2. Additional evidence was received within one year of the October 1999 rating decision, and the RO continued the denial of service connection in an April 2000 rating decision based on the finding that the Veteran did not engage in combat and that none of his stressors had been corroborated. The Veteran was notified of this determination in a May 2000 letter, to include his right to appeal the denial. 3. The Veteran submitted a notice of disagreement in July 2000 and a statement of the case was issued in August 2000. Additional evidence was received, and the RO issued a supplemental statement of the case in April 2001 and informed the Veteran that he had to perfect his appeal in 60 days. The Veteran did not perfect his appeal within 60 days. 4. The April 2000 rating decision is final. 5. The evidence received since the April 2000 rating decision does not raise the reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The April 2000 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for PTSD on the basis of new and material evidence have not been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD The Veteran is requesting service connection for PTSD. This issue was previously denied in an October 1999 rating decision based on a finding that the Veteran did not engage in combat and that none of his stressors had been corroborated. The Veteran was notified of this determination in a November 1999 letter, to include his right to appeal the denial. Additional evidence was received within one year of the October 1999 rating decision, and the RO continued the denial of service connection in an April 2000 rating decision based on the finding that the Veteran did not engage in combat and that none of his stressors had been corroborated. The Veteran was notified of this determination in a May 2000 letter, to include his right to appeal the denial. The Veteran submitted a notice of disagreement in July 2000 and a statement of the case was issued in August 2000. Additional evidence was received, and the RO issued a supplemental statement of the case in April 2001 and informed the Veteran that he had to perfect his appeal in 60 days. No substantive appeal was received within 60 days. As a result, the Board finds that the April 2000 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2017). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 100 (2010). 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). Regardless of the Agency of Original Jurisdiction's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As noted above, the RO issued a final rating decision in April 2000 denying the Veteran's claim for service connection for PTSD. The pertinent evidence of record at the time of the April 2000 rating decision included the Veteran's DD Form-214, service treatment records, service personnel records, responses by the Veteran regarding his PTSD stressors related to his service in Vietnam, a September 1999 PTSD VA examination report, VA treatment records, and medical records from the Social Security Administration. The September 1999 VA examiner diagnosed the Veteran with PTSD. The Veteran reported to the September 1999 VA examiner that he had four stressors as a result of his service in Vietnam. The four stressors reported by the Veteran were that while transporting ammunition it was standard procedure to fire upon anything or anyone who came close to the boat, he witnessed people firing 50 caliber machine guns at sandpans or running over them. He remembered a friend "Murphy" fell off a boat and drowned, and he reported witnessing military personnel hitting civilians with their rifles, which included children. As stated above, the RO denied the claim for service connection for PTSD because it found that the Veteran had not engaged in combat and that none of the stressors the Veteran had reported were corroborated. In August 2011, the Veteran filed an application to reopen the claim for service connection for PTSD. In the September 2011 rating decision, the RO denied reopening the claim. Eventually, however, the RO reopened the claim and decided it on the merits. The evidence added to the file since the last final decision are multiple VA treatment records, additional records from SSA, and September 2011 and February 2015 VA examinations for PTSD. The VAMC treatment records show that the Veteran participated in individual therapy and group therapy for PTSD, depression and substance abuse. The September 2011 VA examiner reported that the Veteran did not have a diagnosis for PTSD. The examiner reported that the Veteran was not exposed to a traumatic event, there was no persistent avoidance of stimuli associated with trauma or numbing responsiveness and there were no persistent symptoms of arousal. The February 2015 VA examiner reported that the Veteran did not meet the diagnostic criteria for a PTSD diagnosis. The Veteran completed a Trauma Symptoms Inventory test as part of the February 2015 VA examination. The test has questions associated with depression and anxiety imbedded in the test making it difficult to ascertain the purpose of the questions. The VA examiner reported that the Veteran's test results were invalid as a result of over-endorsing symptoms and the endorsement of symptoms not typical of PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). After a careful review of the pertinent evidence received since the April 2000 rating decision, the Board finds that the evidence still does not show credible supporting evidence confirming his alleged in-service stressors. There is "new" evidence in the form of multiple VA treatment records, SSA records, and two VA examinations for PTSD. The new evidence is not material evidence as it does not relate to an unestablished fact necessary to substantiate the Veteran's claim for PTSD. 38 C.F.R. § 3.156(a). The Veteran's stressors have not changed, and they have not been corroborated. The Veteran is not a combat veteran, and a medical professional has determined that the Veteran does not have PTSD. While the RO reopened the claim, the Board finds that a reopening is not warranted for the above reasons. Therefore, the Veteran's request to reopen his claim for service connection for PTSD is denied. ORDER New and material evidence has not been received and the request to reopen a claim for service connection for PTSD is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs