BVA Case 93-388: Ptsd

Duran, appeals from a January 28, 1993, decision of the Board of Veterans' Appeals (BVA or Board) which determined that since he had failed to submit new and material evidence regarding his previously and finally denied claim for entitlement to service connection for post-traumatic stress disorder (PTSD), he was not entitled to have his claim reopened and adjudicated.

The appellant contends, inter alia, that the Board erred in finding that he had not submitted new and material evidence and in failing to address a claim that clear and unmistakable error (CUE) had occurred in previous adjudications.

) The Court will vacate and remand the decision of the Board regarding the issue of new and material evidence and will dismiss the appellant's claim that CUE occurred in the January 28, 2 1987, RO decision as the Court finds this allegation does not survive as a viable claim in light of the recent decision of the United States Court of Appeals for the Federal Circuit in Smith v.

In January 1988, the Board denied service connection for PTSD.

The Board, in January 1993, rejected the appellant's attempt to reopen his claim for entitlement to service connection for PTSD, finding that he had not submitted new and material evidence as required by 38 U.

New and Material Evidence A previously and finally denied claim "may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.

The exception to this rule states that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

Therefore, once a BVA decision becomes final under § 7104(b), absent new and material 5 evidence presented or secured, the BVA cannot reopen or readjudicate the claim.