This case involves the Board’s failure to reopen a veteran’s claim for service connection despite admitting that he submitted new and material evidence.
Our client appealed the BVA’s decision to the U.S. Court of Appeals for Veterans Claims (CAVC).
The appeal was resolved through a joint motion to remand: the government attorney agreed with Alexandra Curran’s arguments that the Board failed to properly analyze whether evidence presented by the Veteran constituted new and material evidence.
This appeal involved one issue: whether evidence submitted by the veteran was “new and material evidence” sufficient to reopen his claim for service connection for diabetes, a heart condition, hypertension, and peripheral neuropathy.
When a veteran files a claim and receives a rating decision on an original claim, or even a supplemental claim, and does not appeal that decision within the applicable timeline, the decision becomes final.
If a veteran later wishes to reopen the same claim, he or she can do so by submitting new and material evidence.
Note 1: If submitting new and material evidence is filed within a year of the prior VA rating decision, you are not reopening the claim, but instead adding evidence in connection with a claim pending since the original filing (See 38 C.F.R. §3.156(a)).
Note #2: Reopened claims are only available in Legacy Appeals. Under the new AMA system, there is no such thing as reopened claim. Instead, evidence to support a supplemental claim outside the 1 year appeal period must be new and relevant. Congress intended that "new and relevant" was the same legal standard as "new and material"
Evidence that is new is evidence not previously submitted to the Department of Veterans Affairs. It may be a new medical record, or a new lay statement. New evidence is evidence that the VA receives that is different from previous evidence of record or was not in the VA claims file.
Evidence is material if it relates to an unestablished fact necessary to substantiate the claim. This is a low threshold. In other words, the Board cannot first decide that the medical opinion is inadequate and then deny reopening; instead, it must first reopen the claim, and then decide whether the evidence is sufficient to grant the benefit sought. The law provides that credibility of evidence must be presumed when determining if the veteran is submitting new and material evidence.
In this case, the veteran received a decision denying service connection for diabetes, a heart condition, hypertension and peripheral neuropathy, and did not appeal. Years later, he sought to reopen the same claims for service connection and submitted a medical opinion from his private physician. The BVA admitted that the medical opinion was new and material evidence, but refused to reopen the claims because the physician allegedly did not provide a detailed explanation for his opinion.
Ms. Curran argued that the Board erred in first weighing the credibility of the medical opinion submitted by the Veteran. The Board should have reopened the Veteran’s claims because when he submitted the medical opinion he was submitting new and material evidence.
The Secretary agreed that the Board erred in focusing on whether the physician provided a detailed explanation even though it admitted the evidence the veteran was submitting new and material.
The Veteran and the VA’s Office of General Counsel filed a joint motion to vacate and remand the appeal back to the Board to fix its errors.
If the BVA decision in this case sounds like yours, or if you have a BVA decision that involves clear and unmistakeable error, reach out to the law firm of Attig | Steel.
Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Mark J. Hamel (link to attorney bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: K. Parakkal
Vet's Rep at BVA: pro-se
Date of BVA Decision: June 21, 2018
Date of CAVC Judgment on Remand: May 10, 2019