Citation Nr: 18150792 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 18-13 887 DATE: November 15, 2018 ORDER The petition to reopen the claim for service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), depression, anxiety, and substantive abuse, is denied. FINDINGS OF FACT 1. A December 2015 rating decision, which the Veteran did not appeal, denied service connection for PTSD (also claimed as depression, anxiety, and substance abuse). 2. VA has not received new and material evidence on the claim for a psychiatric disorder since the December 2015 rating decision was issued. CONCLUSIONS OF LAW 1. The December 2015 rating decision is final with respect to the claim for a psychiatric disorder, including PTSD, depression, anxiety, and substance abuse. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim for a psychiatric disorder, including PTSD, depression, anxiety, and substance abuse, have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to April 1981. This appeal comes before the Board of Veterans’ Appeals (Board) from a rating July 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence The Veteran seeks to reopen the claim for a psychiatric disorder, including PTSD. See May 2017 VA Form 21-526EZ, Fully Developed Claim. Although the RO reopened the claim, the Board must determine of its own accord whether reopening is warranted. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether there is new and material evidence to reopen the claim as a jurisdictional matter). For the following reasons, the Board finds that new and material evidence has not been received to reopen the claim. A. Law A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id. In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence received within one year after the date of mailing of an RO decision prevents that decision from becoming final. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see 38 C.F.R. § 3.400(q) (2017). B. Analysis The Veteran’s claim for PTSD was initially denied in a November 2014 rating decision. Service connection was subsequently denied for “PTSD (also claimed as depression, anxiety, and substance abuse to include alcohol abuse)” in a December 2015 rating decision. The Veteran was notified of the decision and his appellate rights in a December 2015 letter. He did not file a NOD, or submit new and material evidence within one year of mailing of the decision. Consequently, the December 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Board finds that the claim denied in the final December 2015 decision, and the current claim are the same. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). Thus, it must first be reopened with new and material evidence before it can be addressed on the merits. Service connection for “PTSD (also claimed as depression, anxiety, and substance abuse to include alcohol abuse)” was denied in the December 2015 rating decision because the RO found that the evidence did not show a current diagnosis of PTSD. Evidence of record at the time of the December 2015 decision included VA treatment records showing diagnoses of a mood disorder, anxiety disorder, depressive disorder, personality disorder, and substance abuse, as well as “PTSD spectrum” symptoms. See September 2013, January 2014 and May 2014 CAPRI Records. They also reflect the Veteran’s reports of psychiatric symptoms since service, which he attributed to witnessing his roommate engaged in sexual activity with male service members. Service treatment records and service personnel records were also in the file at the time of the December 2015 rating decision, and show that the Veteran was diagnosed with a personality disorder after exhibiting discipline issues, and was discharged as unsuitable for service. Since the December 2015 rating decision was issued, additional VA treatment records dated after 2015, as well as new statements by the Veteran, have been added to the file. This evidence is new, but is merely cumulative or redundant of the evidence previously record. The Veteran’s new statements describing the in-service incident and his symptoms since that time are duplicative of essentially identical statements of record when the December 2015 decision was issued. VA treatment records dating from 2015 to 2017 continue to show diagnoses of an unspecified mood disorder, unspecified anxiety disorder, depressive disorder, personality disorder, and history of cannabis use disorder, as well as PTSD spectrum symptoms. These diagnoses are duplicative of the diagnoses already of record at the time of the December 2015 decision. The new VA treatment records also show that in April 2017, a psychiatrist found that the Veteran’s symptoms did not meet the criteria for a PTSD diagnosis. The psychiatrist noted in this regard that “[a]ccording to a review of the record, the main event leading to [the Veteran’s] symptoms was inadvertently walking in and seeing male roommates engaged in sexual activity.” This statement is merely cumulative of the earlier VA treatment records considered in the December 2015 rating decision, which similarly reflect a reported history of psychiatric symptoms ever since the described in-service event. It is readily apparent that the psychiatrist was not making an independent clinical finding that the Veteran’s symptoms were medically or causally linked to that event, but instead merely noting what had been recorded in his medical history, as indicated by the phrase “[a]ccording to a review of the record.” Indeed, the psychiatrist made this observation as a side remark in an explanation as to why she would not render a diagnosis of PTSD, and not for the purpose of assessing the cause or etiology of the Veteran’s diagnoses. Thus, this statement is duplicative of the evidence previously of record recording that history. In sum, the new VA treatment records are cumulative or redundant of the VA treatment records at the time of the December 2015 rating decision. Moreover, the VA psychiatrist’s conclusion that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD does not raise a reasonable possibility of substantiating the claim for PTSD, but in fact the opposite, since a PTSD diagnosis is required in order to establish service connection for PTSD. See 38 C.F.R. § 3.304(f) (2017). (Continued on the next page)   Accordingly, new and material evidence has not been received to reopen the claim for an acquired psychiatric disorder, including PTSD, depression, anxiety, and substance abuse. See 38 C.F.R. § 3.156(a). J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel