Citation Nr: 23019461 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-01 096 DATE: March 29, 2023 ORDER The request to reopen the claim for service connection for post-traumatic stress disorder (PTSD) is denied. The request to reopen the claim for service connection for anxiety is denied. FINDINGS OF FACT 1. The evidence submitted for entitlement to service connection for PTSD after the unappealed March 2011 rating decision is the evidence added to the claims file is new but not material, because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.. 2. The evidence submitted for entitlement to service connection for anxiety after the unappealed November 2014 rating decision is the evidence added to the claims file is new but not material, because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence not having been submitted, the criteria for reopening the claim for service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 7104; 38 C.F.R. §§ 3.102, 3.104, 3.156, 3.303. 2. New and material evidence not having been submitted, the criteria for entitlement to service connection for anxiety have not been met. 38 U.S.C. §§ 5107, 7104; 38 C.F.R. §§ 3.102, 3.104, 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to January 1971. The Veteran passed away from September [redacted], 2019. The Appellant is the Veteran's surviving spouse. She was granted substitution in June 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). As an initial matter, the Veteran requested a hearing on his January 2019 VA Form 9. After the Appellant was granted substitution, a hearing was scheduled for November 12, 2021. Documents in the file indicate the Appellant was contacted to update her address and other contact information prior to the September 2021 notification letter was mailed to the Appellant. An October 2021 Report of General Information indicated the VA called the Appellant to remind her of the hearing. A voicemail was left. However, the Appellant did not show up for the hearing. If an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. The Appellant nor her presentative has submitted a statement providing good cause for why the hearing was missed nor requesting a new hearing. Therefore, the Board will proceed with adjudication of the claims on appeal without seeking a new hearing. In addition, the representative of record submitted a December 2021 Document Evidence Submission indicating her desire to withdraw as power of attorney for the Appellant. Attached was a letter reiterating this request. The Board issued a March 2022 letter informing the representative that she has not properly filed to withdraw as the Appellant's representative. The letter specifically stated "The Board will promptly rule on any such motion to withdraw representation that you file. The Appellant's appeal will be held in abeyance for 30 days, or until your motion is received and considered. If we have not heard from you within 30 days of the date of this letter, we will assume tha you wish to remain the Veteran's representative, and we will resume our review of the appeal. At this time, the Board continues to recognize you as the Appellant's representative." The claims filed does not include any further submissions from the Appellant nor the representative. Therefore, the Board will proceed with adjudication of the claims on appeal. New and Material Evidence A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. 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 1. Entitlement to service connection for PTSD. 2. Entitlement to service connection for anxiety. In a stressor statement received in October 2010, the veteran reported that in 1970 during service he was in Germany and racial tensions were at "fever pitch" and as a result he was assaulted and injured. The Veteran's claim for service connection for PTSD was originally denied in a March 2011 rating decision. It was denied because the service treatment records (STR) did not mention the stressor incident the Veteran reported to the VA nor did the STRs mention any mental health symptoms. The separation examination was normal and the military personnel records did not show behavioral changes after the claimed incident. Post-service treatment records indicated treatment for depression. Therefore the RO found that the evidence did not show that the claimed stressor had occurred. The Veteran filed a timely June 2011 Notice of Disagreement. However, he withdrew his claim in an August 2012 statement. Therefore, the March 2011 rating decision became final. A September 2012 handwritten letter from the Veteran's representative noted that the Veteran was withdrawing his claim for PTSD but submitting a claim for an anxiety disorder. The representative submitted an April 2013 letter informing the VA that the claim was "due to a race riot" and not sexual trauma. The claim was adjudicated in a November 2014 rating decision which denied service connection for an anxiety condition. The rating decision noted that the STRs did not show complaints, treatment, or diagnosis of anxiety or an event in service. The evidence did not show that a disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. This rating decision was not appealed. Therefore, it became final. The Veteran submitted a supplemental claim in March 2016. The claim appealed was "PTSD to include Anxiety." Medical records were added to the file in September 2016. These records indicate the Veteran reported that he had PTSD and anxiety; however, it did not include an objective diagnosis of PTSD from a medical professional and did not establish the claimed in-service stressor. See e.g., May 2012 St. Mary's Medical Center record (review of symptoms - PTSD with anxiety); September 2016 St. Mary's Medical Center record (complained of anxiety). There are several times in the record where a medical professional listed PTSD under past medical history or reported what the Veteran stated he was treated for. However, the record does not support the official diagnosis that condition. Although VA records (such as one dated March 18, 2016) show a diagnosis of anxiety disorder NOS, there is no medical opinion presented linking that to service. The record also still does not show the Veteran as treated for a mental health condition in service. Finally, no additional evidence of a stressor in service has been presented. Although a copy of an article was presented in August 2018 indicating that there had been race riots at military bases in Germany, this does not contain any reference to the Veteran and cannot be considered evidence that the Veteran was involved in or injured during such an incident. The September 2016 rating decision found that new and material evidence had not been submitted. Therefore, the claims were not reopened. The Veteran timely appealed by filing a November 2016 Notice of Disagreement. More medical records were added to the file before the December 2018 Statement of the Case. There was an August 2017 Kingsbrook Nursing Home record that indicated the Veteran had a diagnosis of PTSD unspecified. However, these records do not contain an explanation of the basis for the diagnosis, and did not verify the Veteran's claimed in-service stressor. (Continued on the next page) ? The Veteran timely filed a January 2018 VA Form 9 and a February 2019 VA Form 8 was added the file. During the pendency of the claim, the Veteran passed away in September 2019. Additional evidence has not been submitted by the Appellant or the Appellant's representative. Therefore, the Board finds that the evidence added to the claims file is new but not material, because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Entitlement to service connection for PTSD and entitlement to service connection for anxiety is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.