Citation Nr: 18150121 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-02 005 DATE: November 14, 2018 ORDER New and material evidence has not been received to reopen the claim of service connection for an acquired psychiatric disorder; therefore, the appeal is denied. FINDINGS OF FACT 1. A September 2008 Board decision denied the Veteran’s claim for service connection for an acquired psychiatric disorder described as major depressive disorder, adjustment disorder with mixed emotional features, and narcissistic personality disorder. 2. Evidence received since the September 2008 Board decision was not previously considered by agency decision makers but is cumulative or redundant of the evidence already of record; no evidence received since the September 2008 Board decision relates to unestablished facts or raises a reasonable possibility of substantiating the Veteran’s claim for service connection for an acquired psychiatric disorder.   CONCLUSION OF LAW New and material evidence has not been received since the September 2008 Board decision; the criteria for reopening the previously denied claim of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1100, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the decision to the Board in January 2012. In his substantive appeal, he requested a Board hearing. In June 2014 and March 2017, the Board remanded the claim to the agency of original jurisdiction (AOJ) to schedule the requested Board hearing. Subsequently, in September 2018 correspondence, the Veteran withdrew his Board hearing request. As such, the Veteran’s request for a hearing is withdrawn. 38 C.F.R. § 20.704 (2018). Whether new and material evidence has been submitted to reopen the claim of service connection for an acquired psychiatric disorder. In a September 2008 decision, the Board denied the Veteran’s request to reopen his service connection claim for an acquired psychiatric disorder because there was no new evidence establishing a medical nexus between any current psychiatric disorder and service. The record indicates that the Veteran did not appeal the Board decision to the U.S. Court of Appeals for Veterans Claims. See 38 U.S.C. § 7266 (2012). Further, the Veteran did not file a claim for reconsideration of the decision, and the Chairman of the Board did not order reconsideration of the decision. As such, the Board decision became final. See 38 C.F.R. § 20.1100 (2017). Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012). The exception to this rule is if new and material evidence is presented or secured with respect to a claim that has been disallowed. 38 U.S.C. § 5108. New evidence is defined as 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 2010, the Veteran requested a reopening of his claim of entitlement to service connection for an acquired psychiatric disorder, to include depression. In the February 2011 rating decision on appeal, the RO denied the request, finding that the evidence submitted since September 2008 was not new and material. Since the final September 2008 Board decision, additional medical records and lay statements have been associated with the claims file. January 2011 VA treatment records list active problems of personality disorder, schizoaffective disorder, manic depressive disease, and unspecified alcohol dependence. The Veteran completed an authorization form to obtain medical records from a private facility for psychiatric treatment from 1991 to 2003, however, the facility sent a negative response stating that the Veteran was not seen at that facility. In any event, the medical evidence submitted since 2008 merely establishes a fact established in 2008 – that the Veteran has psychiatric disabilities. In an October 2018 appellate brief, the Veteran, by and through his representative, alleged continuity of psychiatric symptomatology since service. The Board notes that this is a reiteration of previous assertions made (see June 2008 Board Hearing Testimony). After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran’s claim of service connection for an acquired psychiatric disability has not been received, and the claim may not be reopened. The Veteran’s assertions are cumulative with previous assertions so cannot be considered new and material. The VA treatment records submitted were new in that they were not previously before the Board. However, none of this evidence is material for purposes of reopening the service connection claim. None of the new evidence indicates a nexus between disability and service. Therefore, the claim may not be reopened, and the appeal must be denied. There is no reasonable doubt to be resolved as to reopening the claim. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel