Citation Nr: 20003554 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 15-30 839 DATE: January 16, 2020 ORDER New and material evidence has not been submitted to reopen the claim for service connection for posttraumatic stress disorder (PTSD), and the application to reopen is denied. FINDINGS OF FACT 1. In an unappealed January 2011 Board decision, entitlement to service connection for PTSD was denied. 2. The evidence associated with the claims file subsequent to the January 2011 Board denial is cumulative or redundant of the evidence previously of record and does not relate to an unsubstantiated fact or raise a reasonable possibility of substantiating the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The unappealed January 2011 Board decision which denied service connection for PTSD is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156 (a), 3.104(a), 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for January 2011 has not been received and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to November 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the RO. The Veteran testified before a Veterans Law Judge by videoconference at a June 2019 Board hearing, wherein the record was held open for 30 days. A transcript of the hearing is of record. New and Material Evidence For claims not considered under the new Appeals Modernization Act (AMA) framework, a claim that has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), 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). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened, and the former disposition reviewed. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, the Department of Veterans Affairs (VA) must reopen the claim. Stanton v. Brown, 5 Vet. App. 563, 566 (1993). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The Court explained in Colvin that "new evidence" is evidence that is not "merely cumulative" of other evidence of record. Id. The Court has also explained that evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet. App. 140, 145 (1993); Cox v. Brown, 5 Vet. App. 95, 98 (1993); and Colvin, 1 Vet. App. at 174. Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet. App. 181, 185 (1992). The Court has held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). Furthermore, the Court has set forth guidelines regarding the credibility to be accorded to the additional evidence submitted in a claim for service connection based on finality. In particular, the Court has held that, in determining the issue of whether the additional evidence submitted is new and material, a question of law, the credibility of the evidence must be presumed. However, this presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Board, having accepted provisionally for reopening purposes the credibility of the new evidence, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus v. Principi, 3 Vet. App. 510, 512 513 (1992). However, the Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require the VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, 7 Vet. App. 216 (1994). VA denied service connection for PTSD in a January 2011 Board decision. In that decision, the Board found that the Veteran’s assertions of an in-service head injury claimed to have been sustained at the same time as an injury to the right index finger were competent but not credible. In so finding, the Board noted the difference between more contemporaneous medical histories in which the Veteran denied injuries in a November 1974 statement with later reports that he injured his head during an in-service assault and inconsistencies in the Veteran’s own reporting about details of the claimed assault. The pertinent evidence submitted since the January 2011 Board decision are lay statements by the Veteran in support of his claim, a July 2013 VA examination report, a November 2017 sworn affidavit from the Veteran’s friend L.W., and the transcript from the Veteran’s June 2019 videoconference Board hearing. This evidence is new, as it was not before VA at the time of the January 2011 Board decision. However, the evidence does not relate to an unsubstantiated fact or raise a reasonable possibility of substantiating the claim. In so finding, the Board notes that while the Veteran submitted multiple statements in support of his claim following the Board’s January 2011 denial, his statements are redundant of those considered by the Board previously and are thus new, but not material. Regarding the July 2013 VA examination report, the Board notes report includes the examiner’s conclusion that “based on the information provided by the Veteran for this report, in combination with the information obtained from the [claims] file…it is more likely than not that the Veteran suffers from PTSD which began following the reported physical assault.” Significantly, in its January 2011 decision, the Board considered an earlier, November 2006, medical opinion related the Veteran’s PTSD to service based upon the Veteran’s reported stressor. Essentially, then, the new July 2013 VA examiner’s findings are duplicative of November 2006 findings already considered. Similarly, while the November 2017 affidavit is new, it is not material. In her statement in support of the Veteran’s claim, L.W. remarks that the Veteran came home a different person and that he came home “with knots on his head and he had problems with his hand too.” However, these statements do not speak to an unsubstantiated fact, i.e. whether an in-service assault occurred. Instead, they are duplicative of the Veteran’s own claims that he sustained injuries to the head and hand at the same time due to an in-service assault. Finally, while the June 2019 videoconference transcript is also new, the Veteran is shown to merely recount his claims of an in-service assault which have been found to lack credibility, as such this evidence is duplicative of evidence previously considered and when reviewed in light of the evidence previously before the Board, it is not material. (Continued on the next page)   In sum, the new evidence, when viewed in the context of all the evidence, would not change the outcome of the Board’s final January 2011 decision as it is duplicative of the evidence considered at that time. As new and material evidence has not been received, the claim may not be reopened. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.