Citation Nr: 1801066 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-26 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. In a June 2009 decision, the Board denied entitlement to service connection for PTSD. 2. Evidence received since the June 2009 Board decision is either duplicative or cumulative and is not so significant that it must be considered in order to fairly decide the merits of the claim for PTSD. CONCLUSIONS OF LAW 1. The June 2009 Board decision denying the Veteran's claim for service connection for PTSD is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. Evidence received since the June 2009 denial is not new and material; hence, the criteria for reopening the claim for service connection for PTSD have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative have 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 a duty to assist argument). New and Material Evidence In June 2009, the Board denied entitlement to service connection for PTSD on the basis that the Veteran had not been diagnosed with PTSD and because the Veteran had not identified a stressor or that he had been in combat duty. Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. Therefore, the June 2009 Board decision is final based on the evidence then of record. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). In a March 2011 statement, the Veteran sought to reopen his claim for service connection for PTSD. A June 2011 rating decision denied his petition to reopen his claim. VA may reopen and review 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. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the June 2009 Board decision includes statements from the Veteran, VA medical records, a VA examination, the Veteran's hearing testimony, the Veteran's military personnel record, and copies of the Veteran's service treatment records. In April 2011, the Veteran submitted a statement which indicated that he wished to re-open his claim for PTSD. He reported that he had been in battles in Okinawa, Japan, and in the Philippines. He stated that he believed that the traumas he witnessed caused him to develop PTSD. He reported he was being treated for PTSD at a VA medical center (VAMC). In June 2011, a VA examination did not find that the Veteran met the criteria for PTSD. The Veteran reported that he had increased sleep disturbances and crying spells. The Veteran reported recurring dream where he was being chased. The examiner noted that the Veteran was not receiving treatment for a mental health disorder. In the examination, the Veteran stated that he was out at sea and not engaged in combat. The Veteran stated that he was angry most of the time, but he was not entirely sure when this would have had onset. He hypothesized that he had been angry since discharging from the military, but could not identify a reason why. The Veteran denied experiencing nightmares regarding military experiences. The Veteran stated that during his military service, he was primarily involved in convoy duty and would bring ammunition barges into the shore for the Marines. He denied ever coming under attack or under fire during his military service. During the examination the Veteran's prior statements regarding combat activity were brought to his attention; he denied being involved in battles. Additionally, the Veteran refused to talk about his prior assertion of military sexual trauma. Although the Veteran endorsed experiencing intense fear during military service, he was unable to connect it to a specific event. The Veteran did not identify an in-service stressor that would meet the PTSD criteria, therefore, a diagnosis of PTSD was not indicated. Additionally, he did not identify a stressor that was related to a fear of hostile military or terrorist activity while serving on active duty. In his July 2011 Notice of Disagreement, the Veteran stated that he did not deny being in combat in his June 2011 VA examination. He reported that he had trouble understanding the examiner's questions. In his September 2012 VA Form 9 Substantive Appeal, the Veteran stated that he believed he had miscommunicated with the June 2011 VA examiner. He stated that he did fear for his life when he delivered ammunition and supplies to the islands. He reported being in constant fear of enemy air or submarine attack. VAMC records are from 2010 to 2012 and indicate that the Veteran did not receive a diagnosis of or treatment for PTSD. The Veteran's military personnel record indicated he participated in logistic support in supporting Okinawa occupation. In November 2017, the Veteran testified at a hearing before the undersigned Veteran's Law Judge. In the hearing the Veteran testified that he was always in fear for his life due to the ship on which he served and his fear of falling overboard. He also stated he was afraid when shelling happened. He stated that he was on a submarine chaser and that he was fearful of the possibility of being attacked. He reported that the submarine chaser did drop depth charges. He could not identify any specific time that the ship on which he served came under attack. The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, the Board finds that none of the evidence obtained and made a part of the record since the Board's June 2009 decision establishes that the Veteran was diagnosed with PTSD, or that he engaged in combat or hostile military activity while in-service. Rather, all of the newly submitted evidence of record, including the Veteran's own statements, is duplicative of evidence or statements submitted previously. Thus, this evidence is cumulative of statements and medical evidence submitted previously. While the VA examination, the VAMC records, the Veteran's military personnel record, and the Veteran's statements and testimony are new, they are not material as there is no information contained in them that indicates that the Veteran is suffering from or has ever been diagnosed with PTSD. The Board finds, then, that the new evidence associated with the claims file since the Board's June 2009 decision does not relate to any unproven element of the previously denied claim. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for PTSD is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for PTSD is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs