Citation Nr: 18141965 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-18 776A DATE: October 15, 2018 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression, to include as secondary to PTSD.October 15, 2018 ORDER 1. As new and material evidence has not been received; the claim to reopen service connection for an acquired psychiatric disorder, to include PTSD, is denied. 2. As new and material evidence has not been received; the claim to reopen service connection for major depressive disorder, to include as secondary to PTSD, is denied. FINDINGS OF FACT 1. In an August 2000 rating decision, service connection for PTSD was denied. In a subsequent November 2008 Board decision, service connection for an acquired psychiatric disorder, to include PTSD, was denied. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims, nor did he request a reconsideration. As such, the decision is final. 2. In an unappealed February 2012 rating decision, the RO declined to reopen a claim for service connection for PTSD. 3. VA treatment records referring to PTSD have been received since February 2012 and, while chronologically new, are cumulative and redundant of the evidence at the time of the February 2012 rating decision and, even assuming their credibility, do not raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder, to include PTSD. 4. An argument alleging failure to assist has been received since February 2012 which does not constitute new evidence. 5. In a November 2009 rating decision, service connection for depression, to include as secondary to PTSD, was denied. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims, nor did he request a reconsideration. As such, the decision is final. 6. VA treatment records referring to depression have been received since November 2009 and, while chronologically new, are cumulative and redundant of the evidence at the time of the November 2009 rating decision and, even assuming their credibility, do not raise a reasonable possibility of substantiating the claim for service connection for depression, to include as secondary to PTSD. 7. An argument alleging failure to assist has been received since November 2009 which does not constitute new evidence. CONCLUSIONS OF LAW 1. The February 2012 rating decision declining to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD, to include major depressive disorder, is final. The medical evidence and argument received for service connection subsequent to the February 2012 rating decision is not new and material to reopen service connection for an acquired psychiatric disorder, to include PTSD, to include major depressive disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 2. The November 2009 rating denying service connection for depression, to include as secondary to PTSD, is final. The medical evidence and argument received for service connection subsequent to the November 2009 rating decision is not new and material to reopen service connection for depression, to include as secondary to PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to August 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that in his June 2015 substantive notice of appeal, the Veteran requested a Board videoconference hearing. In a July 11, 2018 letter, VA informed the Veteran that a hearing had been scheduled for August 31, 2018. The Board further notes that on August 3, 2018, this letter was returned to VA and marked “RETURN TO SENDER” and “UNABLE TO FORWARD”. Thereafter, the Veteran failed to appear for his scheduled Board hearing and his representative has made no subsequent requests for a new hearing. The law specifically provides that written VA notices are to be sent to "a claimant or payee at his or her latest address of record." 38 C.F.R. § 3.1 (q) (2016). In addition, the appellant has an obligation to assist in the adjudication of his claim in notifying VA of any change in address. See, Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that the Veteran bears the burden of keeping VA apprised of his whereabouts and that, where he does not, "there is no burden on the part of the VA to turn up heaven and earth to find him"); see also, Wood v Derwinski, 1 Vet. App, 190, 193 (1991). Therefore, as VA notified the Veteran of his scheduled hearing at his address of record, he failed to keep VA apprised of his whereabouts, and ultimately failed to report for his Board hearing, his request for such hearing is considered to be withdrawn. See 38 C.F.R. § 20.702 (d) (2017). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in these matters has not referred to any deficiencies in duty to notify. While no assertion of a failure to assist has been made pertaining to the claims to reopen received in May 2012, the Board acknowledges that the Veteran’s representative has asserted a failure to assist regarding the initial denial of service connection in the August 2000 rating decision as well as the November 2008 Board decision denying service connection for an acquired psychiatric disorder, to include PTSD. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims, nor did he request a reconsideration. The denial of this claim consequently became final. See 38 C.F.R. § 20.1000 (2017). Furthermore, there is no communication from the Veteran or his representative specifically asserting a clear and unmistakable error (CUE) in the Board’s November 2008 decision. A CUE consists of "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." See, Russell v. Principi, 3 Vet. App. at 313. CUE is not the mere misinterpretation of facts. See, Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). A disagreement as to how the facts were weighed or evaluated is not an example of a CUE. See 38 C.F.R. § 20.1403 (2017). Therefore, the Board concludes that the issue of CUE has not been raised. The Veteran is free to file a claim of CUE in the future should he desire by specifying the decision that is being challenged based upon CUE and the basis for the challenge. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). New and Material Evidence to Reopen Previously Denied Claims In an unappealed November 2009 rating decision, the RO denied service connection for depression, to include as secondary to PTSD. In an unappealed February 2012 rating decision, the RO declined to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD. In an October 2012 rating decision, the RO declined to reopen claims of service connection for an acquired psychiatric disorder, to include PTSD, and for depression, to include as secondary to PTSD. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The evidence submitted since the February 2012 rating decision consists of the Veteran’s claim to reopen and VA treatment records. The Board notes that while these documents are new, in that they have not previously been submitted, they are not material as they do not address a requirement of service connection that was previously denied. Specifically, these do not provide a nexus linking the Veteran’s claimed acquired psychiatric disorder, to include PTSD. No new facts were alleged in the Veteran’s May 2012 claim to reopen. Additionally, numerous treatment records have been associated with the claims file. As none of this evidence addresses whether the claimed acquired psychiatric disorder, to include PTSD, was related to the Veteran’s service, the Board finds that this new evidence is not material. The Board notes that the Veteran’s file indicates that the Veteran did not have service in the Republic of Vietnam and, to date, the Veteran’s reported stressors have not been verified. As discussed above, the Veteran’s representative submitted an Appellate Brief in September 2018 asserting that an argument alleging a failure to assist the Veteran constitutes new and material evidence. The Board notes that the presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute new evidence. See, Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) ("The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence."). Moreover, until a claim is reopened, the duty to assist, including any duty to provide an examination, is not for application. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression, to include as secondary to PTSD. The evidence submitted since the November 2009 rating decision consists of the Veteran’s claim to reopen and VA treatment records. The Board notes that while these documents are new, in that they have not previously been submitted, they are not material as they do not address a requirement of service connection that was previously denied. Specifically, these do not provide a nexus linking the Veteran’s claimed acquired psychiatric disorder, to include PTSD, to include major depressive disorder, to his active duty military service. No new facts were alleged in the Veteran’s May 2012 claim to reopen. Additionally, numerous treatment records have been associated with the claims file. As none of this evidence addresses whether the claimed depression was related to the Veteran’s service or secondary to claimed PTSD, the Board finds that this new evidence is not material. As discussed above, the Veteran’s representative submitted an Appellate Brief in September 2018 asserting that an argument alleging a failure to assist the Veteran constitutes new and material evidence. The Board notes that the presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute new evidence. See, Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) ("The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence."). Moreover, until a claim is reopened, the duty to assist, including any duty to provide an examination, is not for application. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel