Citation Nr: 0006654 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-18 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to May 1972. This appeal arose from a May 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO), which found that the veteran's claim for service connection for PTSD was not well grounded. FINDINGS OF FACT 1. The Board denied entitlement to service connection for PTSD in September 1994. 2. Additional evidence submitted since that a time fails to show that the veteran suffers from PTSD, which can be related to an inservice stressor. CONCLUSION OF LAW Evidence received since the Board denied entitlement to service connection for PTSD is not new and material, and the September 1994 decision of the Board remains final and is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5107(a), 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 3.304(f), 20.1105 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the applicable law clearly states that, when a claim is disallowed by the Board of Veterans' Appeals, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7104(b) (West 1991). However, when a claimant requests that a claim be reopened after an appellate decision and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1105 (1999). "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). In order to establish entitlement to service connection for PTSD, there must be medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999). The evidence which was of record when the Board considered this case in September 1994 included: the veteran's service personnel and medical records; VA treatment records from July 1988 to July 1991; a September 1990 VA examination report; a December 1991 lay statement from someone who served in Vietnam with the veteran; an October 1991 VA examination report; and the veteran's January 1992 RO hearing testimony. There was no indication that he had received any combat badges. There was also no indication that he had suffered any injuries. His military specialty was general vehicle repairman. His personnel records confirmed that he worked as a vehicle mechanic during his time in Vietnam. In September 1994 the Board denied the veteran's claim of entitlement to service connection for PTSD. The veteran was unable to provide the "who, what, where and when" of the alleged stressors as was necessary to conduct a meaningful search to corroborate those events. The basis of the Board's denial was that the veteran's reported stressors were not verifiable. Evidence submitted since the 1994 denial included: a September 1996 Social Security Administration (SSA) award letter; VA treatment records dated July 1988 to June 1995; and a November 1997 VA examination report. The SSA award letter does not include any information regarding the veteran's PTSD. The VA treatment records dated July 1988 to October 1991 are duplicative of the medical records previously considered by the Board. The VA treatment records dated subsequent to October 1991 show that the veteran reported legal problems related to an indictment; weight loss; medical problems; and insomnia. The diagnoses included PTSD, a personality disorder, alcohol abuse and chronic pain. The November 1997 VA examination provided the diagnosis of PTSD, based on the veteran's reported stressors. After a careful review of the evidence of record, it is found that the additional evidence, which the veteran has submitted, is not "new and material." Accordingly, his claim is not reopened and the September 1994 decision by the Board remains final. "New" evidence means more that evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the instant case, the additional evidence is merely cumulative. The evidence previously of record included the veteran's reported stressors: that he killed a Viet Cong; that he was involved in the killing of some women and children; witnessing a gunman slaughter innocent people and that he was instructed to do things that were against the Geneva Convention. This evidence had also included diagnoses of PTSD based upon this history. However, the additional evidence provides nothing more to assist in conducting a meaningful search to corroborate those events. The additional evidence does not bear directly and substantially upon the specific matter under consideration. That is the additional evidence does not provide the "who, what, where and when" of the alleged stressors as is necessary to conduct a meaningful search to corroborate those events. The additional evidence by itself or in conjunction with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. There has been no objective evidence proffered that would suggest that he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others, that produced a response involving intense fear, helplessness or horror. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders; page 209 (4th ed. Revised 1994). While the veteran had again referred to the same stressors there was no indication that he was in actual danger. Moreover, given that he has presented no evidence that he was exposed to combat (while he has made such claims, his service and personnel records indicate no such combat involvement), he must present some evidence that corroborates his claimed stressors. Zarycki v. Brown, 6 Vet. App. 91 (1993). However, he has failed to present any "new" evidence that would corroborate his claims, nor has he provided sufficiently detailed information capable of substantiation. The veteran has not fulfilled the requirement of presenting "new and material" evidence to reopen his claim for service connection for PTSD. Since it has been determined that no new and material evidence has been submitted, no further analysis is needed. Smith v. West, U. S. Vet. App. No. 95- 638 (April 7, 1999). ORDER New and material evidence not having been submitted to reopen the claim for entitlement to service connection for PTSD, the benefit sought on appeal is denied. C. P. RUSSELL Member, Board of Veterans' Appeals