BVA Case 95-232: Ptsd

An August 1986 RO decision stated that "no new and material evidence [had been] submitted which would warrant reversal of prior denial.

In a November 1991 BVA decision, the Board concluded that evidence submitted since the January 1987 RO denial was new and material, and the Board remanded for the RO to obtain SSA records and an examination by a board of psychiatrists.

6 In the November 15, 1994, BVA decision here on appeal, the Board determined that "the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for PTSD".

The Board determined that there had been no clear and unmistakable error (CUE) in the final, unappealed March 1985, August 1986, and January 1987 RO decisions.

As to the March 1985 RO decision, the Board concluded that the November 1985 statement from the veteran was not an NOD and that the newly submitted outpatient records and February 1985 hospital records were cumulative because they "merely continued to reflect the divergence of diagnostic impressions" in that they diagnosed both PTSD and personality disorders.

44, 53 (1995) (holding that Board, on claim to reopen, erroneously failed to consider CUE claim based on RO's prior denial -- in violation of 38 C.

8 A failure to fulfill the duty to assist cannot constitute CUE.

According to applicable current law, the Secretary must reopen a previous final disallowance of a claim when "new and material evidence" is presented or secured with respect to the basis for the disallowance of that claim.