Citation Nr: 21076523 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-41 818 DATE: December 27, 2021 ORDER The application to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. In an April 2004 Board of Veterans Appeals (Board) decision, the Board denied the Veteran's claim for entitlement to service connection for PTSD. 2. Evidence received since the April 2004 Board decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSION OF LAW The April 2004 Board decision denying the claim for service connection for PTSD is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 1972 to July 1974. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely filed a notice of disagreement (NOD) in February 2017 and substantive appeal in August 2017. In August 2021, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. New and Material Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The application to reopen the previously denied claim for service connection for PTSD The Veteran contends that he has PTSD, and other diagnosed psychiatric disabilities, that are due to his active military service. Specifically, he contends that his military occupational specialty (MOS) included handling dead bodies.The Veteran seeks service connection for PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition to the general service connection requirements stated above, establishing service connection for PTSD, as opposed to other mental health disorders, requires the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Pursuant to 38 C.F.R. § 3.304(f)(3), if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. For purposes of section 3.304(f)(3), "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In a July 1998 rating decision, the RO denied service connection for PTSD based on the finding that the Veteran did not have a current diagnosis of PTSD. It was noted that there had been a questionable diagnosis of PTSD that was raised in the context of inpatient treatment for a primary diagnosis of alcohol dependence in October 1997; however, the VA examiner concluded that that Veteran had polysubstance dependence and did not have a diagnosis of PTSD. In addition, the rating decision found that the Veteran's service treatment records were negative for findings or diagnoses of any other psychiatric disorder. The Veteran timely filed a NOD and substantive appeal. In August 1999 and May 2000, the Board remanded the claim for further development. In particular, the May 2000 remand directed the RO to attempt to corroborate the Veteran's claimed stressor. The Veteran's stressor was that he had to move body bags while stationed in Okinawa, and reportedly heard moans from the body bags. In an April 2004 decision, the Board denied service connection for PTSD. The Board specifically found that the Veteran did not serve in combat with the enemy and that the evidence did not show a link between a diagnosis of PTSD and a verified stressor. The Board concluded that there was no credible corroborating evidence that the Veteran was exposed to an in-service stressor. The Veteran was not a combat veteran and the Board found that in the absence of a verified stressor, a diagnosis of PTSD was not sufficient to support the claim. The evidence considered by the Board included military personnel records, service medical records, VA treatment records, and a VA examination. Although notified of the April 2004 Board denial and his rights to an appeal, the Veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims or request reconsideration of that determination. Therefore, the November 2013 Board decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Evidence added to the claims file since the April 2004 Board decision includes additional VA treatment records, a VA 21-0781 statement in support of the claim for PTSD, a VA memo from VA Records Management Center, a VA administrative decision, additional statements from the Veteran, an August 2021 Board hearing, and treatment records from the Social Security Administration (SSA). While this evidence is new, it is not material to the claim. The additional VA treatment records reflect that the Veteran has been diagnosed with anxiety disorder, NOS, psychotic disorder, NOS, and depressive disorder NOS. This was seen in earlier VA treatment records and the new records do not show a current diagnosis of PTSD. In the additional statements submitted by the Veteran, including the VA 21-0781 statement in support of the claim for PTSD, the Veteran continued to report that part of his duties in service were to transport dead bodies from one area to another. This evidence is not new, and the Veteran has consistently reported this as his stressor since he originally filed his claim for PTSD in 1997. Accordingly, this evidence is cumulative and redundant of evidence previously of record. The VA memos from May 2016 and June 2016 confirm that there is a lack of information required to corroborate stressors associated with a claim for service connection for PTSD. Specifically, the U.S. Army and Joint Services Records Research Center (JSRRC) Coordinator determined that the information required to corroborate the stressful events described the Veteran is insufficient to send to the JSRRC, and/or it was insufficient to allow for meaningful research of Marine Corps of the National Archives and Records Administration (NARA) records. The June 2016 memorandum indicates that the Veteran's personnel file was reviewed, and that there was no information in his records to show that he was ever assigned to the grave registry that would have put him in contact with transporting the dead. This information is not new and material as the Marine Corps Historical Center did not show any evidence indicating that the Veteran's MOS included moving body bags in Okinawa. The August 2021 Board hearing transcripts reflect that the Veteran continued to report that he was diagnosed with PTSD, anxiety, and depression due to his MOS of moving dead bodies. Finally, the SSA records only confirm that the Veteran is in receipt of SSA benefits due to a psychiatric disability that is not PTSD. As the new evidence of record fails to show a DSM diagnosis of PTSD based on a corroborated stressor, or, that the Veteran's reported stressor has been corroborated, the new evidence is not material. Evidence submitted since the prior final denial does not relate to unestablished fact necessary to substantiate the claim, and it does not raise a reasonable possibility of substantiating the claim. It is therefore not new and material. Accordingly, the criteria for reopening the previously denied claim for service connection for PTSD have not been met. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.