Citation Nr: A26001663 Decision Date: 01/07/26 Archive Date: 01/07/26 DOCKET NO. 221114-295719 DATE: January 7, 2026 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to May 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2022 rating decision issued by the Agency of Original Jurisdiction (AOJ), which found that new and relevant evidence had not been submitted to warrant readjudication of the claim for service connection for PTSD. In November 2022, the Veteran timely appealed the decision to the Board. In a January 2023 decision, the Board also found that new and relevant evidence had not been submitted to warrant readjudication of the claim for service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2024, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Remand (Joint Motion), which vacated and remanded the issue herein for readjudication, finding that the Board erred when it failed to provide an adequate statement of reasons or bases for determining that new and relevant evidence had not been submitted to warrant readjudication of the claim for entitlement to service connection for PTSD. The parties further agreed that the Board failed to address a relevant provision in the M21-1 when making its ruling. Later that same month, the Court granted the Joint Motion. Thereafter, in a July 2024 decision, the Board again found that new and relevant evidence had not been submitted since the March 2018 rating decision to warrant readjudication of the claim for service connection for PTSD. In making this finding, the July 2024 Board indicated that the evidence of record at that time of the prior rating decisions included the Veteran's service treatment records, service personnel records, post-service medical records, a March 2015 DBQ, and multiple stressor statements. The July 2024 Board noted that within the March 2018 rating decision, the AOJ provided that the progress notes from the "VA Medical Center submitted in connection with the current claim [do] not constitute new and material evidence because it was previously submitted and considered in the rating decision of September 2015, April 2016, and March 2017." The July 2024 Board explained that although the VA medical records submitted since the March 2018 rating decision noted a diagnosis of PTSD, such diagnosis was already of record at the time of the prior rating decisions. The July 2024 Board further stated that the Veteran's PTSD diagnosis and treatment had already been considered and accepted in the previous rating decisions. Therefore, the July 2024 Board concluded that the Veteran's submission of VA treatment records documenting his already conceded PTSD diagnosis and treatment were cumulative evidence already part of the record. Moreover, the July 2024 Board determined that previous rating decisions denying the Veteran's service-connection claim documented an inability to confirm the Veteran's claimed stressors, not the absence of a current disability. This was documented in the AOJ's January 2017 and March 2022 letters to the Veteran in which it informed the Veteran that it could not verify the Veteran's claimed in-service stressors and sought additional information. Regarding the Adjudication Manual, M21-1, the Board acknowledged that Part X, Subpart ii, Chapter 2, Section A.2.d - Definition: New and Relevant stated that "new evidence that affirms findings previously deemed favorable to the claimant is still relevant." The Board noted, however, that although the VA adjudication manual may be binding on those within VBA, the Board did not conclude that it was, or should be, binding on the Board. See DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017); see also Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board explained that the manual's provision defining new evidence as including evidence that affirmed findings previously deemed favorable to the claimant as still relevant was contrary to the regulation that defines relevant evidence as information that tends to prove or disprove a matter at issue in a claim. Thus, the July 2024 Board found that the Veteran's submission of medical records reaffirming the Veteran's PTSD and ongoing treatment was not relevant in determining whether relevant evidence had been submitted to warrant readjudication of the claim, as the Veteran's PTSD diagnosis and ongoing treatment had already been conceded, and thus, was not a matter at issue in the claim. The July 2024 Board additionally noted that in Kisor v. McDonough, 995 F.3d 1316 (Fed. Cir. 2020) (Kisor IV), in applying the definition of relevant in the context of a different regulation, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) agreed with the Board that "in order to be 'relevant,' a record must speak to the issue that was dispositive against the veteran." The July 2024 Board additionally found that requiring more than duplicative medical records to readjudicate a claim was not a higher evidentiary threshold than the previous new and material evidence standard under the legacy system. The July 2024 Board noted that the new and relevant evidence standard was a lesser burden than the legacy system's new and material evidence requirement. To this extent, the July 2024 Board noted that under the AMA, evidence that disproved a matter at issue would result in readjudication. C.f. Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to the appellant is not new and material). New theories of entitlement would also require that the claim be addressed on the merits. C.f. Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). As such, the July 2024 Board determined that readjudication of entitlement to service connection for PTSD was not warranted as the Veteran's submission of medical treatment records establishing the previously-conceded PTSD diagnosis and ongoing treatment was not new evidence related to a matter at issue and did not present a new theory of entitlement. The July 2024 Board further acknowledged that following the remand from the Court, in January 2024, the Veteran submitted a Memorandum with legal arguments for consideration. Within the Memorandum, the Veteran argued that the AOJ committed a pre-decisional duty to assist error when it did not request assistance from United States Army and Joint Services Records Research Center (now Records Research Center (RRC)) in an effort to identify his claimed in-service stressors. The Veteran further noted that notwithstanding the fact that he did not respond to the AOJ's March 2022 letter indicating that it needed additional information regarding the Veteran's claimed stressors before it could seek assistance from RRC, the AOJ was required to request assistance from the RRC because the requested information, which included a request for "very close approximate" dates of the incidents, were already of record. The Veteran stated that the claimed stressors concerned incidents that occurred during training, and his June 1964 date of service, infantry training assignment location, and February 1965 2nd Calvary Armory assignment date were already of record. Therefore, the Veteran argued, the AOJ was required to make multiple RRC requests in 60-day increments for the period between June 1964 and February 1965 to attempt to identify the Veteran's claimed stressors, pursuant to Gagne v. McDonough, 27 Vet. App. 397, 403 (2015). In its July 2024 decision, the Board acknowledged the Veteran's argument. However, the Board determined that prior to the Court granting the January 2024 Joint Motion, the Veteran had an opportunity to submit these arguments to the Court and those arguments, including arguments submitted by the Secretary of VA, were considered. The Board indicated that ultimately, the Veteran's pre-decisional duty to assist error argument was not addressed in the January 2024 Joint Motion in which the Court granted. Consequently, the Board determined that because the Veteran's argument was not addressed in the Joint Motion, the argument was not before the Board. As such, the Board did not address the Veteran's argument. The Veteran subsequently appealed the July 2024 Board decision to the Court. In August 2025, the Veteran and the Secretary of VA entered a Joint Motion for Remand (Joint Motion) vacating and remanding the July 2024 Board decision denying readjudication of the claim for entitlement to service connection for PTSD because new and relevant evidence had not been submitted. Specifically, the parties agreed that the July 2024 Board failed to address an argument explicitly raised by the Veteran. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (holding the Board must address all issues raised explicitly by the claimant or reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The parties found that although the Veteran's argument was not addressed in the Joint Motion, because the argument was explicitly raised in the Veteran's January 2024 memorandum, it was before the Board. Therefore, the Board was required to address it. The parties agreed that on remand, the Board must address the Veteran's explicitly raised argument. In August 2025, the Court granted the Joint Motion. The case has now returned to the Board for further appellate review. Consistent with the Veteran's November 2022 Notice of Disagreement wherein he elected a "Direct Review" for his appeal of the July 2022 rating decision, the Board may consider only the evidence of record at the time of the July 2022 rating decision. 38 C.F.R. § 20.301. However, because the Board is remanding the claim for entitlement to service connection for PTSD, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for PTSD is remanded. In a January 2024 Memorandum, the Veteran contends that the AOJ committed a pre-decisional duty to assist error when it did not request assistance from RRC in an effort to identify his claimed in-service stressors despite the fact that the necessary information, such as the Veteran's June 1964 date of service, his infantry training assignment location, and his February 1965 2nd Calvary Armory assignment date, was already of record. The Board agrees that because the Veteran had previously submitted geographical information and dates related to his claimed in-service stressors, despite the Veteran not responding to the AOJ's March 2022 letter indicating that it needed additional information before it could seek assistance from RRC, pursuant to its duty to assist obligations, the AOJ was required to request assistance from RRC to attempt to corroborate the Veteran's claimed in-service stressors prior to deciding the Veteran's claim. In light of the Board's finding that there was a pre-decisional duty to assist error in the AOJ not requesting assistance from RRC to attempt to verify the Veteran's claimed in-service stressors, the Board finds that new and relevant evidence has been submitted since the March 2018 rating decision to warrant readjudication of the service-connection claim. Thus, remand is warranted to address this pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Attempt to verify the Veteran's claimed in-service stressors, including the reported stressors related to the Veteran witnessing fellow soldier John Stock being killed when a round blew a shell backward into his face; the stressor of the Veteran witnessing another soldier named Bill being run over by a tank, and witnessing other soldiers being stabbed and cut in the barracks. The Veteran entered service in June 1964. He states that these incidents occurred over the course of 1964 through 1965, while he was assigned to the infantry training center at Fort Gordon, Georgia and the 2nd Calvary Armory Artillery in Germany. If more details are needed, contact the Veteran to request the information. The AOJ is required to reach out to the appropriate records repositories to attempt to corroborate the alleged stressors, including the Records Research Center. 2. Once completed, readjudicate the claim. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.C. 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.