BVA Case 21-7788: Depression

The RO also denied the petition to reopen the claim for service connection for chronic fatigue syndrome and explained that the evidence submitted in connection with the current claim did not constitute 2 new and material evidence because while it was new,it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.

In the August 2021 decision,the Board determined that the June 2010 rating decision is final with respect to the denials of service connection for fibromyalgia and chronic fatigue syndrome.

The Board determined that the criteria for an effective date prior to May 12,2013, 1 The November 2013 rating decision granted service connection for fibromyalgia and chronic fatigue syndrome,and assigned an effective of March 12,2013,not May 12,2013,for these disorders.

ity of the decision because the AOJ failed to assess whether those [VA treatment records] contained new and material evidence as required by 38 C.

In the alternative, the appellant contends that the Board failed to provide an adequate statement of reasons or bases regarding its determination that the VA treatment records generated after the June 2010 decision did not toll the finality of this rating decision.

According to the Secretary, the Board is obligated to determine whether new and material evidence was presented because the Board is obligated to determine its own jurisdiction.

In the alternative,the appellant contends that 6 the Board failed to provide any reasons or bases addressing whether its actions addressing the newly received VA treatment records in the first instance deprived him of the one review on appeal to which he is entitled under section 7104(a).

The Secretary further notes that the Court in Jackson held that the Board is obligated to consider whether there is new and material evidence no matter how the AOJ ruled on the matter.