Citation Nr: 1756832 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-02 452 ) DATE ) ) On appeal from the Department of Veterans (VA) Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from August 1972 to August 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision of the Portland, Oregon, Regional Office (RO). Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. In July 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. As to the issue of whether new and material evidence has been received to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The RO originally denied the claim in a February 2006 rating decision. The Veteran appealed and the Board denied the claim in January 2009. As a result, the Veteran's application requires new and material evidence before the merits of the claim can be considered. FINDINGS OF FACT 1. The Board denied service connection for an acquired psychiatric disorder, to include PTSD in January 2009 and the Veteran did not appeal that decision. 2. The January 2009 Board decision denying the claim is final. 3. Evidence associated with the claims file since the January 2009 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The January 2009 Board decision that denied service connection for an acquired psychiatric disorder, to include PTSD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claim for an acquired psychiatric disorder, to include PTSD has not been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In February 2006, the RO denied service connection for a PTSD because there was not sufficient evidence to verify an in-service military sexual trauma (MST). The Veteran was informed in writing of the adverse decision and his appellate rights in March 2006. The Veteran appealed to the Board in June 2006 and the Board denied the Veteran's appeal in January 2009. The Veteran did not appeal to the Court of Appeals for Veterans Claims (CAVC) and the decision became final. In January 2009, the Board denied the service connection claim because the record contained no corroborating evidence that verified the Veteran's claimed PTSD stressor. The Board noted the Veteran's diagnosis for PTSD but found service connection unwarranted because the record did not contain claims of assault, or any injuries related to the assault. In its January 2009 decision, the Board indicated the first mention of the alleged assault in the record is found in February 2005 VA treatment records, almost 30 years following discharge from active service. The additional evidence received since the January 2009 Board decision includes an August 2011 lay statement from the Veteran's brother and the Veteran's July 2017 hearing testimony. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Here, the additional evidence submitted since the January 2009 Board decision is not new. In his July 2017 the Veteran reiterated the same series of events he claimed when this issue was before the Board in January 2009. His brother's August 2011 statement discusses the Veteran's substance abuse history, which is already of record and generally alleges the Veteran had trauma in-service. As new evidence has not been received, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is not reopened. ORDER The application to reopen the claim of entitlement to service for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs