Citation Nr: 21040727 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-15 461A DATE: July 6, 2021 ORDER New and material evidence has not been received to reopen the Veteran's claim for entitlement to service connection for major depressive disorder. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for major depressive disorder was denied in a September 1995 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 2. In April 2005, the Veteran submitted a claim to reopen his claim for service connection for major depressive disorder. The Board denied the claim to reopen in a September 2009 decision. The Veteran did not initiate an appeal. The decision became final. 3. Evidence submitted since the September 2009 Board decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for major depressive disorder, and therefore does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for major depressive disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1964 to October 1966. The Veteran died in July 2014. The Appellant is his widow and is the substitute claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2021 Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (CAVC). 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for major depressive disorder. Prior to his death, the Veteran asserted that his major depressive disorder was caused by his experiences during military service. Regardless of the determination by the Agency of Original Jurisdiction (AOJ) to reopen the claim, the Board must adjudicate the new and material issue to determine the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's original claim for major depressive disorder was denied in September 1995 because the record did not support his claim that he complained of, sought treatment for or was diagnosed with a psychiatric disorder during service or within one year of leaving service. 38C.F.R. §3.307. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. §7105; 38C.F.R. §§3.156 (b); 20.302, 20.1103. The Veteran filed a claim to reopen in April 2005; the claim was denied in a September 2009 Board decision. In February 2011 the Veteran requested to reopen his claim for depression. In the March 2012 rating decision on appeal, the AOJ reopened the claim based on new evidence comprising of new medical treatment records. However, the claim was denied because none of the new records supported the Veteran's claim that his depression started during his active military service or occurred within one year of his active military service. The question before the Board is whether new and material evidence has been submitted to reopen the claim. At the outset, the Board notes that in a February 2011 VA outpatient psychiatric note the Veteran reported that his military medical records did not include his service treatment records from Korea, including psychiatric treatment. Upon review, all of the Veteran's service treatment records are present in the record, including treatment records during the Veteran's period of service in Korea. The Veteran's service treatment records were considered by the initial September 1995 rating decision as well as the subsequent December 2005 rating decision and September 2009 Board decision. As such no further development is warranted for additional service treatment records. Evidence added to the record since the September 2009 Board decision include treatment records. The medical records show the Veteran had a history of depression, but none of the records provide any nexus or connection to the Veteran's military service. The Appellant offered her own assertions but was unable to provide any additional competent evidence pertaining to the major depressive claim. (Continued on the next page) The Board finds that evidence submitted since the September 2009 Board decision is not material because it does not bear directly or substantially upon the matter of service connection by itself or in connection with evidence previously assembled and is not so significant that it must be considered to decide the claim fairly. The claim was initially denied because there was no evidence relating the Veteran's major depressive disorder to service; none of the recently submitted evidence establishes that fact. 38U.S.C. §5108; 38C.F.R. §3.156; Shade v. Shinseki, 24Vet. App.110 (2010). The claim to reopen is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.