Citation Nr: 21027876 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-56 828 DATE: May 7, 2021 ORDER The application to reopen the previously denied claim of service connection for a right hand/wrist injury is denied. REMANDED The application to reopen the previously denied claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The appellant's original claim for service connection for a right hand/wrist disability was denied in a December 1983 rating decision because the evidence of record did not show an in-service injury or incurrence of the claimed disability. The appellant was notified of this decision and his appellate rights in a January 1984 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement nor was new and material evidence received. 2. In November 1991, the appellant filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a March 1992 rating decision, the RO denied the request to reopen as no new and material evidence had been received. The appellant perfected an appeal of this decision in May 1992. In a September 1993 decision, the Board of Veterans Appeals (Board) denied the request to reopen the claim for service connection for a right hand/wrist disability because the evidence received since the prior final denial was not new and material. The appellant did not appeal this decision of the Board. 3. In January 1999, the appellant filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a July 1999 rating decision, the RO denied the request as the additional evidence received since the prior final denial was not new and material. The appellant was notified of this decision in a July 1999 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement nor was new and material evidence received. 4. In August 2004, the appellant again filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a January 2005 rating decision, the RO denied the request because new and material evidence had not been received since the prior final denial. Following the issuance of that notification letter, the appellant submitted a lay statement from a family friend which indicated that they remembered the appellant having broken his right hand while on active duty. A subsequent rating decision was not issued, and no notice of disagreement was received within a year of the rating decision. 5. Evidence received since the last final July 1999 rating decision is cumulative, and/or not otherwise related to an unestablished fact necessary to substantiate the claim for service connection for a right hand/wrist disability. CONCLUSIONS OF LAW 1. The December 1983 and July 1999 rating decisions, as well as the September 1993 Board decision, are final. 38 U.S.C. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1100, 20.1103. 2. New and material evidence has been not received to warrant the reopening of the previously denied claim for service connection for a right hand/wrist disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from October 1965 to October 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the appellant's applications to reopen his previously denied claims for service connection for PTSD and for a right hand/wrist injury. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2015. A Statement of the Case (SOC) was issued by VA in September 2017. VA received the appellant's Substantive Appeal (Form 9) in October 2017, requesting a hearing before the Board by live videoconference. The appellant appeared before the undersigned Veterans Law Judge at a live videoconference hearing in March 2020. A transcript of that hearing has been added to the record on appeal. In a July 2020 decision, the Board remanded the above claims for further development, to include sending the appellant proper notice regarding his claim for PTSD based on an in-service personal assault and obtaining the appellant's complete service personnel records. A Supplemental Statement of the Case (SSOC) was issued by VA in January 2021. As noted in the prior July 2020 Board decision, the Board makes its own determinations regarding whether new and material evidence has been received, regardless of whether the RO determined new and material evidence had been received by VA since the prior final denial of a claim. The Board must address the issue of receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principii, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). As such, the Board has styled the issues on appeal as claims to reopen and will consider them as such. New and Material Evidence 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a right hand/wrist injury. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Typically, a new theory of entitlement alone does not constitute new and material evidence and will not be sufficient to reopen a previously denied claim of service connection under 38 C.F.R. § 3.156(a). See also Velez v. Shinseki, 23 Vet. App. 199, 205-06 (2009) (explaining that separate theories do not constitute separate claims and a previously denied claim may be reopened on an alternate theory only if new and material evidence is presented). The appellant's claim for service connection for a right hand/wrist disability was initially denied in a December 1983 rating decision because the evidence of record did not show an in-service injury or incurrence of the claimed disability. The appellant was notified of this decision and his appellate rights in a January 1984 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence was not received. As such, the Board finds that the January 1984 rating decision is final. In November 1991, the appellant filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a March 1992 rating decision, the RO denied the request to reopen as no new and material evidence had been received. The Veteran perfected an appeal of this decision in May 1992. In a September 1993 decision, the Board determined that new and material evidence had not been received to reopen the claim for service connection for a right hand/wrist disability. The appellant did not appeal this decision of the Board. As such, the Board finds that the September 1993 Board decision is final. In January 1999, the appellant again filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a July 1999 rating decision, the RO denied the request to reopen as the evidence received since the prior final denial was not new and material. The appellant was notified of this decision in a July 1999 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence was not received. As such, the Board finds that the July 1999 rating decision is final. In August 2004, the appellant again filed a request to reopen the previously denied claim for service connection for a right hand/wrist disability. In a January 2005 rating decision, the RO denied the request to reopen as new and material evidence had not been received since the prior final denial. Following the issuance of that notification letter, the appellant submitted a lay statement from a family friend which indicated that they remembered the appellant having broken his right hand while on active duty. A subsequent rating decision was not issued, and no notice of disagreement was received within a year of the rating decision. Although the appellant did not initiate an appeal of the August 2004 rating decision, because VA received evidence reasonably related to the claim during the one-year appeal period following the issuance of the August 2004 rating decision, the RO had an obligation under 38 C.F.R. § 3.156(b) to determine whether such evidence was new and material. Since it did not, the Board finds that the August 2004 rating decision did not become final and the request to reopen remained pending. 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). The new evidence received since the last prior final denial of this claim in July 1999 includes VA treatment records which show continuing treatment and symptoms related to the appellant's right hand/wrist disability. These records contain no competent opinions regarding the etiology of the appellant's current right hand/wrist disability. They merely show continuing treatment for a disability the appellant has complained about and received treatment for since at least the time he filed his initial claim for service-connection in March 1982. The nature of the appellant's current disability is not at issue. What is at issue is establishing a link between the current disability and the appellant's active service. The Board finds the additional VA treatment records, while new, are not material. The evidence contained in these records is cumulative of evidence previously considered. The evidence does not have any bearing on the outstanding questions relevant to this claim, which are whether there is a link between the appellant's current hand disability and his report of having broken his hand while on active duty. As such, the claim cannot be reopened based on receipt of these records. 38 C.F.R. § 3.156. The appellant has also submitted additional lay statements, including at his March 2020 Board hearing, regarding the nature of his current disability and regarding his having broken his hand in service. He also expressed that it was his opinion there was a medical link between the current disability and the in-service incident. The appellant's reports of how he broke his hand in service, of his current symptomatology, and of his history of symptoms in the right hand, however, is cumulative of the evidence previously of record and at the time of the last final decision. The appellant has consistently given the same narrative regarding how he injured his right hand in service, what symptoms, and treatment he received, and his symptoms since service. While the testimony he provided at his hearing was the most recent recitation of these events, there were no new additional, relevant details which were added to his account which would render the statements not cumulative. The appellant did reference a letter from his mother March 2020 Board hearing which he said corroborated his in-service injury to his right hand. A review of the record does not indicate that this document, as described, is evidence that is of record in this case. There is a letter from a family friend that was received in January 2005, in which the family friend states it was their recollection that the appellant had a broken hand while on active duty. However, like the prior statements of record, this letter contains information which was already considered at the time of the last prior final denial of this claim. As such, it does not constitute new and material evidence. In October 2020, VA also obtained copies of the appellant's military personnel records, which were not previously of record. As these were new service department records, the Board has considered whether reconsideration of the claim is warranted. 38 C.F.R. § 3.156(c). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. 38 C.F.R. § 3.156(c). In reviewing these records, the Board finds that they are not relevant to this claimed disability such that reconsideration of the entire claim would be warranted. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that the word "relevant" in 38 C.F.R. § 3.156(c) is not ambiguous: "To be relevant, a record must address a dispositive issue and therefore affect the outcome of the case." Kisor v. Wilkie, 969 F.3d 1333, 1338-39 (Fed. Cir. 2020). The issue in question regarding the appellant's claim is whether the appellant's current right hand/wrist disability is at least as likely as not related to his reported in-service injury to the right hand/wrist. Contained in the military personnel records received by VA are copies of requests the appellant himself made in 1983 for records which would support this claim and would verify his injury to the right hand while on active duty. A December 1983 report of search for records of the claim injury is contained in these military personnel records and indicates that records consistent with what the appellant was claiming regarding his in-service injury could not be located. A review of the rest of these records does not reveal any documents which would make any fact of consequence in this case more or less likely to be true, otherwise address a dispositive issue, or affect the outcome of the case. As such, the Board finds they are not relevant and reconsideration of the claim, with the potential accompanying effective date, is not warranted. 38 C.F.R. § 3.156(c). The Board has also considered whether these records constitute new and material evidence. 38 C.F.R. § 3.156(c). To that end, the Board notes that relevance is an even lower standard than materiality, and as just stated, the Board has not found these records to be relevant to an issue of consequence in deciding this claim. While the records are new, as they were not previously of record, they are not at least as likely as not material, as they do not raise a reasonable possibility of substantiating the claim. There is no mention of the appellant having had an in-service hand injury in these records. In fact, they indicate that such records as the appellant had previously sought almost 40 years ago were not found. These new personnel records do not have any bearing on the outstanding questions relevant to this claim, which are whether there is at least as likely as not a link between the appellant's current hand disability and his report of having broken his hand while on active duty. There are no competent opinions answering this question in the affirmative contained with these personnel records. As such, the claim cannot be reopened based on receipt of these records. 38 C.F.R. § 3.156. While the January 2021 SSOC stated that this evidence was new and material, the Board is not bound by this finding, as the Board makes determinations regarding whether evidence is new and material de novo so as to establish jurisdiction of the underlying issues. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001). No rationale or explanation was offered in the January 2021 SSOC as to why the newly received evidence was material or relevant for purposes of deciding this claim. There was no discussion of how the evidence went towards establishing a fact of consequence or how the newly received military personnel records raised a reasonable probability of substantiating the claim. They did not trigger the duty to assist further, as the RO did not order any additional development, request a medical examination or opinion, or seek any additional records. Considering all this, the Board finds that the preponderance of the evidence is against finding the evidence received since the last final rating decision on this issue is new and material. 38 C.F.R. § 3.156. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The application to reopen the previously denied claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. When a veteran files a claim for PTSD based on an in-service personal assault, the RO is required to provide special notice to the appellant regarding additional types of evidence he can submit in relation to his claim. The purpose of this special notice is to relay to veterans the relaxed standards brought about by liberalizing changes to VA regulations regarding the corroboration of these specific types of claims. The liberalizing effects of these changes were that additional forms of evidence could be used to corroborate a claimed in-service stressor if that stressor was based on an in-service personal assault. See 38 C.F.R. § 3.304(f)(5) (listing some of the additional types of evidence that may be considered in corroborating stressors related to in-service personal assaults and detailing VA's requirement to provide special notice in such cases). Based on the Board's review of the claims folder in July 2020, it did not appear that this special notice was sent to the appellant in this case. As such, the Board remanded the claim so that the RO could fulfill VA's duty to provide the proper notice of the types of evidence the appellant could submit to substantiate his claim for PTSD based on an in-service personal assault. The Board specifically ordered that the RO "[s]end the appellant notice required for PTSD claims based on personal assaults." In August 2020, the RO mailed the appellant notice of the kinds of evidence that could be submitted in support of a general claim for PTSD and for a claim for PTSD based on fear of hostile military or terrorist activity. The notice mailed to the appellant did not include the additional forms of evidence that could be submitted to corroborate an in-service stressor based on an in-service personal assault. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, while the Board regrets the further delay, the appeal must again be remanded for compliance with the Board's July 2020 remand directives. (Continued on the next page) The matters are REMANDED for the following action: 1. Send the appellant the notice required for PTSD claims based on in-service personal assaults and allow time for a response. See 38 C.F.R. § 3.304(f)(5) (listing some of the additional types of evidence that may be considered in corroborating stressors related to in-service personal assaults and detailing VA's requirement to provide special notice in such cases). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.