Citation Nr: 18154923 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-39 645 DATE: December 4, 2018 ORDER Reopening of a previously denied claim of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. Service connection for PTSD was most recently denied in an April 2000 Board of Veterans’ Appeals (Board) decision on the basis that there was no verified, credible in-service stressor. 2. Evidence received since April 2000 is cumulative and redundant of evidence already of record, does not address a previously unestablished fact, and does not raise the reasonable possibility of substantiating the Veteran’s claim. CONCLUSION OF LAW 1. The April 2000 Board decision denying service connection for PTSD is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2018). 2. The criteria to reopen the previously denied claim of service connection for PTSD are not met. 38 U.S.C. 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marines from November 1968 to November 1970. This matter is before the Board on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO). New and Material Evidence Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s claim of entitlement to service connection for PTSD was denied by the Board in April 2000. Evidence included service personnel and treatment records, VA and private medical records showing diagnoses of PTSD based on Vietnam combat experiences, the Veteran’s reports of stressor events, and a Command Chronology for his unit in Vietnam. Ultimately, the claim was denied because there was no credible supporting evidence that the in-service stressors claimed by the Veteran actually occurred. Specifically, the Board found that the Veteran’s allegations of combat participation were not credible. He was not present in the combat zone for most of the period alleged, and for the remainder served in a noncombat role with a headquarters company. Some records specifically contradicted his descriptions of circumstances. The Board did not comment on more general allegations related to being present in Vietnam, including taking sniper fire at times or being fearful. That decision became final when issued. Since that Board decision, the Veteran has sought to reopen his claim, citing the relaxation in the evidentiary standard for establishing a stressor due to hostile enemy action under 38 C.F.R. § 3.304(f)(3). He has submitted multiple statements repeating his earlier allegations, as well as medical records reporting a diagnosis of PTSD related to Vietnam. VA examination reports indicate no diagnosis of PTSD is warranted; treatment records indicate a psychiatric condition is present and the Veteran participates in a PTSD group, but no clear diagnosis is made. This evidence is not considered new, as it is cumulative and redundant of the evidence of record and fully considered in April 2000. Some, such as reference to sniper attacks at the Rock Crusher, are exact duplicates. Other simply repeats already established evidence, such as medical indicators of current disability. The crux of the Veteran’s application to reopen, however, is not the substance of his allegations, but the change in regulations. Effective in July 2010, 38 C.F.R. § 3.304(f)(3) was amended to permit a Veteran’s lay testimony alone to establish the occurrence of an in-service stressor, when such is consistent with the facts and circumstances of service. He has not, in other words, submitted anything new and material or attempted to do so. He has instead repeated his allegations of combat participation and sought application of a lesser standard. Unfortunately, regardless of the standard to be applied, these allegations have been previously adjudicated to be untrue. The Veteran lacks all credibility, as found by the Board in April 2000. The evidence he proffers, his lay statements, therefore lack all probative weight and cannot be found to be new and material evidence. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). The application to reopen is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel