Citation Nr: 21067798 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-57 628 DATE: November 5, 2021 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for major depression is denied. FINDINGS OF FACT 1. In a final rating decision issued in July 2011, the Agency of Original Jurisdiction (AOJ) denied service connection for major depression. 2. Evidence added to the record since the final July 2011 rating decision is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for major depression. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied service connection for major depression is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for major depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1991 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2016 by the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado. In January 2021, the Veteran testified before the undersigned at a videoconference hearing before the Board. A transcript of that hearing has been associated with the record. New and Material Evidence By way of background, VA originally received the Veteran's claim of entitlement to service connection for major depression in June 2007. In a November 2007 rating decision, the claim was denied. Although the Veteran appealed the denial, following the issuance of a January 2009 statement of the case, he did not file an appeal and the November 2007 decision became final. In May 2011, the Veteran again filed a claim for service connection for major depression. In a rating decision issued in July 2011, the AOJ reopened the claim and denied it, finding that there was no evidence of a nexus between the Veteran's diagnosed major depression and his military service. The AOJ explained that the evidence of record showed a post-service onset, and a June 2011 VA treatment note purporting to show a link to service was not probative, as it was based on the Veteran's subjective history. That same month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement as to the decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of the decision, and no relevant service department records have since been received. Therefore, the July 2011 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the issuance of the July 2011 rating decision, evidence consisting of updated VA treatment records, Social Security Administration (SSA) records, and lay statements, to include the Veteran's testimony at the January 2021 Board hearing, have been associated with the record. Included in the Veteran's VA treatment records is a statement from his treating psychiatrist, Dr. C.S.B., in which the doctor concluded that the Veteran's depression started during active duty service. In fact, Dr. C.S.B. repeated this statement, verbatim, a total of 10 times in the Veteran's VA treatment records during the present appeal period. However, the Board notes that this exact same statement, written word-for-word, was made by Dr. C.S.B. in the June 2011 VA treatment note that was the basis for the AOJ's reopening and denial of the claim in the July 2011 rating decision. In other words, the evidence is literally redundant of the exact evidence in the record at the time of the previous decision, and thus it does not trigger VA's duty to assist. Of the remaining evidence, the SSA records simply show that the Veteran was first diagnosed with major depression in 2005, and his statements, including his testimony before the Board, repeat his original assertions that he first developed major depression while in service. Therefore, the Board finds the evidence added to the record since the final July 2011 denial is cumulative or redundant of the evidence of record at the time of the decision, and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for major depression. Therefore, as new and material evidence has not been received, the criteria to grant the application to reopen the claim has not been met. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.