Citation Nr: 18130294 Decision Date: 08/29/18 Archive Date: 08/29/18 DOCKET NO. 15-42 102 DATE: August 29, 2018 ORDER As new and material evidence has not been received, the application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The RO denied reopening the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD in an April 2013 rating decision. The decision became final as a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 2. Evidence associated with the claims file since the April 2013 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The April 2013 rating decision that denied the reopening of the Veteran’s claim of service connection for an acquired disorder, to include PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received is not new and material, the requirements to reopen the Veteran’s claim for an acquired psychiatric disorder, to include PTSD has not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from September 1965 to September 1966. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration 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. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) The Veteran is claiming entitlement to service connection for PTSD. The Veteran’s initial claim of service connection for PTSD was denied in an August 2008 rating decision. He filed a notice of disagreement with that denial and in January 2009, a statement of the case was issued. The Veteran did not a file a substantive appeal of that denial, nor did he submit any new evidence within 60 days of the issuance of that statement of the case. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Therefore, the claim became final. The claim was initially denied because the Veteran’s service treatment records did not document any psychiatric incidents during service, and there was no evidence linking his claimed psychiatric disability to active service. In September 2010, the Veteran filed to reopen his claim for service connection for PTSD and the RO denied the request to reopen in a November 2010 rating decision citing no new and material evidence had been submitted. In an April 2013 rating decision, the RO again denied the Veteran’s request to reopen his claim for service connection for PTSD as the evidence submitted was not new and material. The Veteran did not appeal this rating decision; thus, the April 2013 decision is the final denial. Thereafter, the Veteran again sought to reopen this claim, as reflected in a supplemental claim received on May 10, 2013. The RO denied his claim to reopen in an February 2014 rating decision citing no new and material evidence of a plausible relationship between his diagnosed PTSD and an in-service stressor was submitted. Although the RO declined to reopen the previously denied claim of service connection for PTSD in its rating decision, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108, 7105 to address the question of whether new and material evidence has been received to reopen the service connection claim. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate such on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The additional evidence received since the April 2013 rating decision includes treatment records from April 2013 through April 2018 that show continued treatment for his PTSD symptoms. Additionally, the record includes a July 2013 note from the Veteran’s private physician stating that he treated the Veteran in 1984 for some marital therapy and issues surrounding his alcoholism. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510. Here, the additional evidence submitted since the April 2013 rating decision is not new. In his appeal, the Veteran reiterated the same series of events he claimed as his stressor and has not submitted new evidence that shows a relationship exists between his diagnosed PTSD and his active service.   As new evidence has not been received, the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is not reopened. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel