Citation Nr: 18141276 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 18-29 092 DATE: October 10, 2018 ORDER New and material evidence having not been received, the petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. FINDINGS OF FACT 1. In a final decision issued in August 2014, the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, denied service connection for an acquired psychiatric disorder, claimed as depression. 2. In a final decision issued in December 2014, the RO denied service connection for PTSD. 3. Evidence added to the record since the final August 2014 and December 2014 denials is cumulative or redundant of the evidence previously considered and does not relate to an unestablished fact necessary to substantiate the claim for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The August 2014 RO decision that denied the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is final. 38 U.S.C.§ 7105(c) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2017). 2. The December 2014 RO decision that denied the claim of entitlement to service connection for PTSD is final. 38 U.S.C.§ 7105(c) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.1103 (2017). 3. New and material evidence has not been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1967 to March 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the prior August 2014 and December 2014 rating decisions, the evidence of record included available service treatment records that failed to show any complaints, treatment, or diagnoses for a psychiatric disorder; VA and private treatment records dated through 2014; and the Veteran’s statements in support of this claim. The RO denied the claim for depression in the August 2014 rating decision on the basis there was no evidence showing the disorder was etiologically related to the Veteran’s military service. The RO denied reopening the claim of entitlement to service connection for PTSD on the basis new and material evidence had not been submitted showing the Veteran had a current diagnosis of PTSD. The Veteran filed a petition to reopen her claim in February 2017. The April 2017 rating decision continued the prior denial. The evidence received since the rating decisions dated in August 2014 and December 2014 includes additional VA treatment records; an April 2018 VA examination; a statement from his wife attesting to the Veteran’s symptoms; and, additional statements by the Veteran in support of his claim. The VA and private treatment records do not contain a current diagnosis of PTSD. In fact, an April 2017 VA treatment record reflects a negative screening for PTSD. Included in these treatment records are diagnoses for depression recurrent and moderate non-psychotic generalized anxiety disorder. The VA treatment records do not include an etiological statement attributing any currently diagnosed psychiatric disorder to the Veteran’s military service. The Veteran was also afforded a VA examination in April 2018. At that time, the only diagnosed psychiatric disorders noted were depression and anxiety. The examiner also failed to attribute these disorders either to the Veteran’s military service or to any service connected disabilities. The Board acknowledges that the Veteran raised a new etiological theory (secondary service connection) during the pendency of this appeal. However, a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). While a new theory of entitlement cannot be the basis for reopening a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, such evidence has not been presented. The evidence is not new and material and reopening is not warranted. There is no competent evidence of record indicating the Veteran’s psychiatric disorders may be etiologically related to his military service. The evidence added to the record is cumulative. As new and material evidence has not been received, the appeal must be denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel