Citation Nr: 20007341 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 18-01 369 DATE: January 29, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a back disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for a bilateral foot disability is granted. New and bilateral evidence having been received, the petition to reopen the claim of service connection for memory loss is granted. REMANDED Entitlement to service connection for a back disability. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a nasal injury is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for kidney failure is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), depression, anxiety, and stress is remanded. FINDINGS OF FACT 1. In June 2007, the Appellant re-filed claims of service connection for posttraumatic stress disorder and a back disability. In a March 2009 decision, the Board of Veterans’ Appeals (Board) denied the Appellant’s claims and found that he was not a Veteran. 2. The evidence received since the March 2009 Board decision is not duplicative or cumulative of evidence previously of record and it raises the possibility of substantiating the Appellant’s claims of service connection for a back disability and PTSD. 3. In January 1997, the Appellant filed a claim of service connection for a broken foot. In a May 1997 administrative decision, the Regional Office (RO) denied his claim of service connection until there was verification of his status as a Veteran. The Appellant did not file a notice of disagreement and no new and material evidence was received within the appeal period. 4. The evidence since the May 1997 administrative decision is not duplicative or cumulative of evidence previously of record and it raises the possibility of substantiating the Appellant’s claim of service connection for a foot disability. 5. In December 1997, the Appellant filed a claim of service connection for memory loss. In an August 1999 administrative decision, the RO denied his claim of service connection until verification of his status as a Veteran. The Appellant did not file a notice of disagreement and no new and material evidence was received within the appeal period. 6. The evidence since the August 1999 administrative decision is not duplicative or cumulative of evidence previously of record and it raises the possibility of substantiating the Appellant’s claim of service connection for memory loss. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for PTSD have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103, 20.1104. 2. The criteria for reopening the claim of service connection for a back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103, 20.1104. 3. The criteria for reopening the claim of service connection for a bilateral foot disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for reopening the claim of service connection for memory loss have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant asserts he had various periods of active duty service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 administrative decision and a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2011 administrative decision, the RO continued the previous denial of service connection for PTSD because there was no evidence of active military service. The Appellant subsequently re-filed his claim of service connection for PTSD in September 2011, December 2011, November 2012, November 2013, December 2013, December 2014, which the Board construes as notices of disagreement (NOD) with the correlating administrative decisions issued in November 2011, February 2012, March 2014, and February 2015, which all continued the previous denials of service connection for PTSD. The Appellant filed a formal NOD to the February 2015 administrative decision in March 2015 and again re-filed his claim of service connection for PTSD in January 2016. In a May 2016 rating decision, the RO denied service connection for an acquired psychiatric disability, including PTSD, depression, anxiety, and stress, and denied service connection for a back disability, bilateral foot disability, bilateral hearing loss, tinnitus, GERD, hip injury, kidney failure, memory loss, nasal injury, prostate disability, and a sleep disorder. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. A copy of the transcript has been reviewed and associated with the claims file. Whether new and material evidence has been received to reopen the claims of service connection for posttraumatic stress disorder (PTSD), back disability, bilateral foot disability, and memory loss Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. As set forth above, in a March 2009 decision, the Board denied service connection for PTSD and a back disability. The record shoes that the Appellant did not appeal the Board’s March 2009 decision. Thus, the Board’s March 2009 decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.1104. Furthermore, the RO denied service connection for a foot disability and memory loss in May 1997 and August 1999 administrative decisions, respectively. The Appellant was notified of the decisions and of his procedural rights in the administrative decisions. He did not appeal these determinations and no additional evidence was submitted within a year following the administrative letters. As such, the May 1997 and August 1999 determinations are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board notes that the issues of service connection for PTSD, a back disability, memory loss, and a foot disability were all denied because there was no evidence that the Appellant had Veteran status. Since the May 1997 and August 1999 administrative decisions and March 2009 Board decision, additional statements from the Appellant, hearing testimony, and letters issued by VA have been associated with the claims file. After a review of the record, the Board finds that new and material evidence has been received to reopen the claims of service connection for PTSD, back disability, bilateral foot disability, and memory loss. The evidence is new, as it was not part of the record at the time of the prior decisions. It is also material as it relates to an unestablished fact necessary to substantiate the claims. The newly added evidence indicates that that Appellant may be a Veteran. Specifically, December 2011, January and October 2013, and May 2015 letters from the VA indicate that the Appellant was discharged from the armed forces. The Board reiterates that the credibility of the evidence is presumed in determining whether new and material evidence has been submitted and has made no such finding of credibility at this time. Justus, 3 Vet. App. at 513. Accordingly, the evidence is new and material and the claims of service connection for PTSD, back disability, bilateral foot disability, and memory loss are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded; 2. Entitlement to service connection for a bilateral hip disability is remanded; 3. Entitlement to service connection for a bilateral foot disability is remanded; 4. Entitlement to service connection for bilateral hearing loss is remanded; 5. Entitlement to service connection for tinnitus is remanded; 6. Entitlement to service connection for a nasal injury is remanded; 7. Entitlement to service connection for a sleep disorder is remanded; 8. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded; 9. Entitlement to service connection for kidney failure is remanded; 10. Entitlement to service connection for a prostate disability is remanded; 11. Entitlement to service connection for memory loss is remanded; 12. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), depression, anxiety, and stress is remanded. After a review of the evidence, the Board notes that the Appellant’s status as a Veteran has not been verified. However, December 2011, January and October 2013, and May 2015 letters from the VA indicate that the Appellant served on active duty. The December 2011 and January 2013 letters indicate that he served in the Army from May 1969 to September 1971 and the Navy from October 1971 to November 1974. The October 2013 letter indicates that he served in the Marine Corps from June 1967 to August 1967 and from October 1971 to November 1974 and in the Army from May 1969 to September 1971. Lastly, the May 2015 letter from the VA indicates that the Appellant served in the Marine Corps from June 1967 to August 1967, in the Army from May 1969 to September 1971, and in the Navy from October 1971 to November 1974. Accordingly, the Board finds that a remand is warranted in order for VA to investigate and produce the source materials verifying the Appellant’s service listed in the December 2011, January and October 2013, and May 2015 letters from the VA or make a finding that no such materials exist. (Continued on the next page)   The matters are REMANDED for the following action: Take all necessary steps to produce the source materials relied on to verify the Appellant’s service listed in the December 2011, January and October 2013, and May 2015 letters from the VA. If this information or documentation does not exist or is unavailable, this fact should be documented and a formal finding of such fact should be made, with notice to the Appellant and his representative and they should be given an opportunity to respond. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.