Citation Nr: 21005958 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-23 751 DATE: February 3, 2021 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. In a final decision issued in February 2015, the Board of Veterans Appeals (Board) denied service connection for an acquired psychiatric disorder. 2. In July 2015 and December 2015, the Veteran filed a motion for reconsideration, which was denied by the Board in January 2021. 3. In a final rating decision issued in October 2016, the Agency of Original Jurisdiction (AOJ) reopened and denied the Veteran’s claim for service connection for an acquired psychiatric disorder. 4. Evidence added to the record since the final October 2016 denial 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 an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The February 2015 Board decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100 (2014). 2. The October 2016 rating decision that reopened and denied the Veteran’s claim for service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1959 to January 1963. This matter comes before the Board on appeal from a rating decision issued in October 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2018, the Board denied the Veteran’s application to reopen the claim of entitlement to for service connection for an acquired psychiatric disorder. Thereafter, he appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Vacatur, Reversal in part, and Remand (Joint Motion), which reversed the Board’s determination in the November 2018 decision that a February 2015 Board decision was final and vacated and remanded remainder of the decision for action consistent with the Joint Motion. The appeal now returns to the Board for further appellate review. In June 2020, the Veteran submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1) (prior to February 19, 2019). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. By way of background, the AOJ originally denied service connection for an acquired psychiatric disorder, characterized as depression, in an April 2012 rating decision. Thereafter, the Veteran appealed such denial to the Board and, in a February 2015 decision, the Board upheld the AOJ’s denial of service connection for depression, recharacterized as a claim for service connection for an acquired psychiatric disorder. At such time, the Board considered the Veteran’s statements, service treatment records (STRs), post-service treatment records, and April 2012 and November 2014 VA examinations and found that the Veteran’s currently diagnosed acquired psychiatric disorder was not caused or aggravated by his military service. Specifically, the Board observed that the Veteran’s STRs revealed that, in December 1961, he fell off a boat and incurred multiple contusions throughout his back and a muscle strain and, in April 1962, he presented to sick bay, crying and “somewhat irrational.” He was expressing hostility towards others and felt like he wanted to “see them die,” and was “no longer in this world.” There was no previous psychiatric history. The diagnosis was passive-aggressive reaction. Upon admittance to a psychiatric hospital, it was noted that the Veteran had grown to dislike life in the Navy and was having increasing difficulty communicating with others. Following mental status examination, it was determined that psychiatric hospitalization or treatment was not needed, and instead the Veteran was to be transferred off of the ship in order to carry out the remainder of his enlistment. The Board further observed that the Veteran’s post-service treatment records reflected that he had a diagnosis of an acquired psychiatric disorder, but his current symptoms were likely due to his grandson’s deployment. Additionally, while the April 2012 VA examiner found that the Veteran did not have an acquired psychiatric disorder, the December 2014 VA examiner diagnosed unspecified depressive disorder. However, upon a review of the evidence, the Board found that the Veteran’s diagnosed acquired psychiatric disorder was not related to his military service in that the December 2014 VA examiner found that the Veteran’s in-service psychiatric symptoms appeared to resolve, and his current depressive disorder was less likely than not due to his reported service stressors, to include the fall from the ship and watching a Buddhist monk burn. The Board also considered that the April 2012 VA examiner noted that the Veteran’s initial “decompensation” while in the Navy was likely due to major depression and he was status post traumatic brain injury, and the December 2013 private opinion that the Veteran could have chronic posttraumatic stress disorder (PTSD) that began during the hospitalization in 1962 and he might have had a mood disorder secondary to the head injury following the fall from the ship. However, the Board found that such opinions were based upon an inaccurate factual history presented by the Veteran, and his credibility with respect to the reported history was called into question in light of the fact that there was no documented head injury in his service records. In this regard, the Board determined that the Veteran’s contentions that his current psychiatric disorder was caused or aggravated by the fall from the ship was of lesser probative value because the Veteran’s report of events was inconsistent with the service records and the competent medical evidence did not suggest any relationship between the fall, and/or his brief psychiatric treatment in service, and his current psychiatric disorder. Consequently, the Board found that there was no nexus between the Veteran’s acquired psychiatric disorder and his military service, and denied service connection for such disorder. In February 2015, the Veteran was advised of the decision and his appellate rights, which indicated that, if he wished to file a motion for reconsideration, a motion for vacatur, or a claim of clear and unmistakable error in such decision, he should forward such directly to the Board. However, in July 2015 and December 2015, he sent the AOJ statements indicating that he wished to file a motion for reconsideration wherein he alleged clear and unmistakable error in the February 2015 decision. Thus, in January 2016, the AOJ sent the Veteran another copy of his appellate rights and instructed him to forward any correspondence relating to the February 2015 decision directly to the Board, but he did not do so. Nonetheless, as noted by the parties in the Joint Motion, the Board constructively possessed such correspondence and, thus, reversed the Board’s finding that the February 2015 decision was final while such potential motion was pending. Fithian v. Shinseki, 24 Vet. App. 146 (2010); Ratliff v. Shinseki, 26 Vet. App. 356 (2013). Upon the case’s return to the Board, such filings were accepted as Motions for Reconsideration; however, in January 2021, a Deputy Vice Chairman of the Board, as delegated by the Chairman of the Board, denied such motion based on a finding that the February 2015 decision was without an obvious error of law or fact that warranted reconsideration. Furthermore, while the Veteran’s service personnel records were received in June 2016, such include either duplicative information that was previously considered by the Board, or are irrelevant to the instant claim. Therefore, the February 2015 Board decision is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1100 (2014). Thereafter, in an October 2016 rating decision, the AOJ reopened and denied the Veteran’s claim for service connection for an acquired psychiatric disorder. In this regard, the AOJ considered the Veteran’s STRs, service personnel records, and additional VA and private treatment records. The AOJ noted that the Veteran’s claim had previously been denied as the probative evidence failed to show that his current acquired psychiatric disorder was related to his military service. It was further observed that, while the Veteran was currently claiming service connection for PTSD, the probative evidence continued to fail to show that his acquired psychiatric disorder, however diagnosed, was related to his military service. Later that month, the Veteran was informed of the decision and his appellate rights; however, he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was received within one year of the issuance of the October 2016 rating decision. In this regard, while updated VA treatment records were subsequently associated with the record in July 2017, August 2017, and September 2017, they contain only duplicative or irrelevant information. Furthermore, no relevant service department records have since been received. Therefore, the October 2016 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2016). Generally, a claim which has been denied in an unappealed Board decision or 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). Evidence received since the issuance of the October 2016 rating decision includes VA treatment records and lay statements, to include the testimony from the Veteran and his spouse at the August 2018 Board hearing. Specifically, the Veteran’s treatment records indicate that he has a currently diagnosed acquired psychiatric disorder, to include MDD and PTSD. See October 2017, January 2018, and April 2018 VA treatment records. However, such records do not show a nexus between such disorder and the Veteran’s military service. In this regard, the records continue to show that he had an acquired psychiatric disorder and noted his reports of his aforementioned in-service fall off a ship and psychiatric treatment, but do not show that his acquired psychiatric disorder is related to any instance of his military service, to include his in-service fall. Additionally, the Veteran’s and his spouse’s statements, to include their August 2018 Board hearing testimony, is duplicative of the allegations at the time of the prior denial in October 2016, i.e., that his acquired psychiatric disorder was related to his in-service fall of a ship. The Board also notes that the Veteran’s spouse reported that one of the Veteran’s VA treatment providers informed them that she felt that his acquired psychiatric disorder was related to his fall from the ship. However, while the Veteran’s spouse’s report is presumed credible for the purpose of reopening the claim, she provided no basis for the opinion and such is not reflected in the Veteran’s VA treatment records. Moreover, such reported opinion is duplicative of the evidence previously of record at the time of the October 2016 rating decision, which included opinions rendered in April 2012 and December 2013 relating the Veteran’s acquired psychiatric disorder to his in-service fall. Consequently, as the Veteran’s claim was previously denied on the basis that the probative evidence failed to show a relationship between his currently diagnosed acquired psychiatric disorder and his military service, and the newly received evidence likewise fails to show such a nexus, the Board finds that it is cumulative and redundant of the evidence of record at the time of the October 2016 rating decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Therefore, new and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, and the Veteran’s appeal must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.