Citation Nr: 18103294 Decision Date: 05/17/18 Archive Date: 05/17/18 DOCKET NO. 15-05 294 DATE: May 17, 2018 ORDER New and material evidence having not been received, the appeal to reopen the claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT Evidence received since the March 2012 final rating decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, i.e., lack of an in-service event, disease, or injury. CONCLUSION OF LAW Evidence received since a March 2012 final rating decision is not new and material and reopening of the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to August 1973. This appeal is before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that the Veteran also has a separate appeal pending for waiver of indebtedness. He has requested a videoconference hearing with respect to this issue alone, and the Board therefore does not address that issue at this time pending the scheduling of his hearing. The Veteran seeks to reopen his claim of service connection for PTSD. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran’s claims for acquired psychiatric disabilities were initially denied in a February 2003 rating decision on the basis that there was no in-service event, disease, or injury to relate to any current disabilities. He neither appealed this decision nor submitted evidence within one year of the decision and thus it became final. Claims to reopen were denied in a March 2012 rating decision on the basis that new and material evidence had not been presented. He neither appealed this decision nor submitted evidence within one year of the decision and thus it too became final. In several statements received since the March 2012 final rating decision, the Veteran stated that he received nonservice-connected pension based on his PTSD, but that this was a mistake and he should have been awarded service connection. In support of this the Veteran re-submitted VA treatment records that were considered in the original denial. The Board notes that whether the Veteran realized it or not, his claim for service connection was fully adjudicated in February 2003. VA treatment records obtained since the March 2012 final rating decision reflect that the Veteran has undergone mental health treatment. He has reported that he attributes symptoms to a motor vehicle accident he was in while in service. He does not, however, provide any information about this motor vehicle accident that was not provided in his prior claims for PTSD. In November 2014, the Veteran stated that his nightmares made him feel like he was back in Vietnam. He reported that while in service he saw people getting killed and had to shoot people. The Board finds that the evidence received since the March 2012 final rating decision is essentially cumulative of the evidence previously of record as to the basis for the prior denial, i.e., lack of an in-service event, disease, or injury. As to the Veteran’s statements directly to VA, these focus primarily on his 2002 diagnosis of PTSD, which was considered in and not a basis for the prior denial. The statements do not contain any information that was not conveyed in statements of record prior to March 2012, and are therefore redundant. As to his treatment records, to the extent that they address an in-service event, they merely reiterate the Veteran’s reports. As to the motor vehicle accident, the reports in his treatment records are like his non-medical statements to VA, entirely redundant of those of record prior to March 2012. As to his reported service in Vietnam, these statements are cumulative of a June 2009 VA treatment record in which the Veteran reported that he was in combat. The Board notes that service personnel records, along with the bulk of the Veteran’s own statements, incontrovertibly establish that the Veteran was never in combat, was never stationed in Vietnam, and spent the entirety of his overseas deployment in Guam. Although the Board must generally presume the credibility of this evidence, it is cumulative to evidence already of record in March 2012 and it does not raise a reasonable possibility of substantiating the claim. It therefore cannot be considered new and material evidence. Accordingly, the criteria for reopening entitlement to service connection for an acquired psychiatric disability are not met. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel