Citation Nr: 20037594 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-28 430 DATE: June 2, 2020 ORDER New and material evidence having not been received, the appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is denied. New and material evidence having not been received, the appeal to reopen a claim of entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. Entitlement to service connection for depression was denied in a February 2008 rating decision, and a claim to reopen a claim of entitlement to service connection for PTSD was most recently denied in a December 2008 rating decision; the Veteran did not perfect an appeal to either decision and new and material evidence was not received within a year of notice of either decision. 2. The evidence received since the final February 2008 rating decision and December 2008 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability, to include PTSD and depression. 3. A claim to reopen a claim of entitlement to service connection for a right knee disability was denied in a December 2008 rating decision; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within a year of notice of that decision. 4. The evidence received since the final December 2008 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. A February 2008 rating decision which denied service connection for depression, and a December 2008 rating decision which, in pertinent part, denied a claim to reopen a claim of entitlement to service connection for PTSD, are final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received since the final February 2008 and December 2008 rating decisions that denied service connection for depression and denied a claim to reopen a claim of service connection for PTSD, and the claim for service connection for an acquired psychiatric disability to include PTSD and depression is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The December 2008 rating decision which, in pertinent part, denied a claim to reopen a claim of entitlement to service connection for a right knee disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received since the final December 2008 rating decision that denied a claim to reopen a claim of service connection for a right knee disability, and the claim for service connection for a right knee disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to February 1976 and for 15 days in August 1991. The Veteran also has National Guard service. These matters come to the Board on appeal from a December 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018. A transcript of that hearing is of record. These matters were previously remanded by the Board in November 2018. The Board notes that a claim for a psychiatric disability may be characterized broadly to include a claim for psychiatric symptoms, rather than a specific disability. Thus, although the Veteran’s January 2013 claim requested entitlement to service-connected for PTSD, the Board finds that the Veteran’s diagnosis of depression is encompassed by the Veteran’s claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board notes that the Veteran’s representative raised the issue of entitlement to service connection for ADHD at the June 2018 hearing. The Board notes that the Veteran had a diagnosis of ADD at the time of the December 2008 RO decision that denied entitlement to service-connection to PTSD. However, the RO has not yet decided the issue of entitlement to service-connection for ADHD. As such the Board refers the issue of entitlement to service connection for ADHD to the Agency of Original Jurisdiction (AOJ) for additional consideration. VA’s Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105. The issue of reopening a claim goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO’s action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received or submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 and 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 1. New and material evidence having not been received, the appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depression is denied. A February 2008 rating decision denied entitlement to service connection for depression, and most recently, a December 2008 rating decision denied a claim to reopen a claim of service connection for PTSD. The Veteran’s claim for depression was denied due to no link between his disability and service or a service-connected disability, and PTSD was denied due to the lack of a verifiable stressor. The Veteran did not appeal the February 2008 decision which denied entitlement to service connection for depression nor was new and material evidence received within one year of notice of the decision. With regard to the December 2008 rating decision, the Veteran did not perfect a timely appeal in response to a March 2011 Statement of the Case. Thus, both decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In January 2013, the Veteran submitted a claim to reopen the claim for entitlement to service connection for PTSD. That claim to reopen was denied in a December 2013 RO decision. The Veteran’s appeal of that decision forms the basis of the present appeal. The record as considered by the February 2008 and December 2008 RO decisions demonstrated that the Veteran had diagnoses of PTSD, depressive disorder, and ADD. The Veteran contended that his PTSD was due to stressors of a vehicle accident in 1974, a drowning fireman, the shooting of a service-member, and patrolling. Service records did not show psychiatric complaints in service. The record did not contain a competent medical opinion linking the Veteran’s conditions to service. Since the December 2008 RO decision, VA has received treatment records showing continued treatment for PTSD, depression, and ADHD. The Veteran’s testimony at his hearing did not differ from his contentions as to the nature and etiology of his condition found in treatment records considered by the February 2008 and December 2008 rating decisions. The record does not contain evidence of a new disability or in-service event, injury, or illness not previously considered by the February 2008 or December 2008 rating decisions. The Board notes that the issue of entitlement to service connection for ADHD is raised by the record but has not been adjudicated by the AOJ and is referred for RO consideration in the introduction of this decision. The Board finds that the multitude of treatment records pertaining to treatment of the Veteran’s psychiatric conditions since December 2008 are new, as they were not previously considered. However, the evidence is not material, as it does not relate to an unestablished fact necessary to substantiate the claim. The only unestablished fact necessary to substantiate the Veteran’s claim is whether his current disabilities are related to his service, including an in-service stressor. The new evidence does not relate to the remaining unestablished fact and does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application, and the appeal to reopen the claim is denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). 2. New and material evidence having not been received, the appeal to reopen a claim of entitlement to service connection for a right knee disability is denied. A claim to reopen a claim of entitlement to service connection for a right knee disability was denied in a December 2008 RO decision. The Veteran’s claim was denied due to no link between his disability and service. The Veteran did not perfect a timely appeal in response to the March 2011 Statement of the Case nor was new and material evidence received within one year of notice of the decision. The Board notes that evidence received in July 2009 is cumulative of the evidence of record at the time of the December 2008 decision, as it continues to show treatment for arthritis and a meniscal condition, without comment as to etiology or nexus to service. As such, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In January 2013, the Veteran submitted a claim to reopen the claim for entitlement to service connection for a right knee disability. That claim to reopen was denied in a December 2013 RO decision. The Veteran’s appeal of that decision forms the basis of the present appeal. The record as considered by the December 2008 RO decision demonstrated that the Veteran had a current right knee disability involving osteoarthritis, traumatic arthritis, and a meniscal injury. The Veteran contended that he fell in service in 1974 and 1975 and was treated for his injuries to his right knee. Service records showed treatment for a bruised right knee condition in 1974. The record did not contain a competent medical opinion linking the Veteran’s knee conditions to service. Since the December 2008 RO decision, VA has received treatment records showing continued treatment for a meniscal tear and arthritis, including surgery. The Veteran’s testimony at his hearing did not differ from his contentions as to the nature and etiology of his condition found in treatment records considered by the December 2008 rating decision. The record does not contain evidence of a new disability or in-service event, injury, or illness not previously considered by the December 2008 rating decision. The Board finds that the multitude of treatment records pertaining to treatment of the Veteran’s right knee since December 2008 are new, as they were not previously considered. However, the evidence is not material, as it does not relate to an unestablished fact necessary to substantiate the claim. The only unestablished fact necessary to substantiate the Veteran’s claim is whether his current disabilities are related to his service. The new evidence does not relate to the remaining unestablished fact and does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the benefit-of-the-   doubt doctrine is not for application, and the appeal to reopen the claim is denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, Associate 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.