Citation Nr: 18159117 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-08 395 DATE: December 18, 2018 ORDER New and material evidence not having been submitted, reopening of the claim for service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased evaluation for limitation of motion of the left third metacarpal fracture residuals (“left index finger disability”) is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities is remanded. FINDING OF FACT 1. In a September 2010 rating decision, the RO denied service connection for PTSD; the Veteran did not perfect n appeal as to this claim. 2. Evidence added to the record since the September 2010 rating decision is cumulative or redundant of evidence then of record, and does not relate to an unestablished fact necessary to establish service connection for PTSD. . CONCLUSION OF LAW 3. The September 2010 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence has not been submitted with regard to the Veteran’s claim of entitlement to service connection for PTSD, and thus, the criteria for reopening have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1977 to January 1979. The Veteran has made several statements that he would like to re-open his claim for service connection for a left thumb disability. This has not been adjudicated in the first instance, the Board must refer that claim to the Agency of Original Jurisdiction (AOJ) for development. New and Material By way of background, the Veteran filed a claim for service connection for PTSD in February 2010. In a September 2010 rating decision, the RO denied the Veteran’s claim because there was insufficient evidence confirming a link between the Veteran’s diagnosis of PTSD to the Veteran’s active military stressor. The Veteran requested information on how to appeal the decision, but never stated that he disagreed with the decision, and did not perfect his appeal. The September 2010 rating decision became final. 38 U.S.C. § 7105 (2012); C.F.R. §§ 3.104 (a), 20.302(b) (2016); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The claim that led to the present appeal was filed in April 2012. In a rating decision dated in November 2012, VA denied the Veteran’s petition to reopen his claim for service connection for PTSD, explaining that there was no new evidence submitted that related to an unestablished fact necessary to substantiate the claim or raised a reasonable possibility of substantiating the claim. Generally, the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108 (2012). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated 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. Id. at 118. Pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is 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. New and material evidence must be neither cumulative nor redundant of previous evidence of record and, with regard to materiality, need only relate to an unestablished fact necessary to substantiate the claim. See Id. at 119-20; 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the Board does not weigh the evidence or determine whether it is credible, but rather, treats the evidence as credible for the purpose of determining whether to reopen the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As acknowledged previously, the unestablished fact that is necessary to substantiate the Veteran’s claim is evidence that his PTSD is related to his active military service. The evidence of record in September 2010 included Social Security documentation, medical evidence noting a diagnosis of PTSD due to his incarceration, and statements from the Veteran relating his PTSD diagnosis to his incarceration. For instance, a VA treatment note from June 2008, indicates that the Veteran’s acquired psychiatric symptoms of depression and suicidal ideation is related to his post-service legal problems to include his multiple incarcerations. In a May 2010 statement in support of claim, he states that he was stabbed seven times in May 2002, and was diagnosed with PTSD and major depressive disorder due to his experiences in prison. After the September 2010 rating decision became final, the Veteran continued to submit further statements regarding being stabbed in prison and having PTSD due to this traumatic incident. In an October 2012 Statement in Support of Claim, the Veteran stated that he was diagnosed with PTSD due to an incident during his incarceration. The Board finds since the September 2010 rating decision, the evidence submitted is not new and is cumulative of the evidence that was already of record. Considering the foregoing, the Board finds that new and material evidence was not received subsequent to the last final disallowance of the claim, and thus, the claim is not reopened. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has asserted that his left index finger disability is more severe than his current non-compensable rating. The Veteran has not been able to attend a VA examination due to his recent incarceration. However, the Veteran has been recently released from prison, and as such, the Board finds that it necessary to remand this claim for an increased rating in order to determine the current severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board is also remanding the issue of entitlement to a TDIU as intertwined with the appeal for entitlement to an increased evaluation for his service-connected left index finger disability. The matters are REMANDED for the following action: 1. Update the Veteran’s VA treatment records, specifically since August 2017 for any treatment related to his left index finger disability. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the nature, extent, and severity of his service-connected left index finger disability. He should be provided a reasonable amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the current severity of his left finger disability. All indicated studies and tests should be completed, and the clinical findings should be reported in detail. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson