One of the most common BVA errors is when it improperly affirms a denial of a Veteran (or a surviving spouse) request to reopen a claim.
A Veteran need only show 1 thing when they want to reopen a previously denied or final claim: that they have submitted New and Material Evidence in support of their claim.
1) What is “New Evidence”? New Evidence is anything that hasn’t been previously submitted to the VA.
2) What is “Material Evidence”? It is not enough that the evidence is simply “new”. The evidence needs to be “material”. One legal definition of “material” is that a particular piece of evidence ‘has a logical connection to a fact of consequence to the outcome of a case’.
Every lawyer spent several weeks in law school learning many nuances of the legal term-of-art “material”, and I don’t think I can teach you everything in one post. BUT, here is one tip that you can use to argue that your new evidence is material.
Step 1. Look to the ratings decision you are trying to reopen.
Step 2. See why the VA denied the claim (for example, lack of a current disability? lack of nexus to service? lack of evidence of an in-service event).
Step 3. If the new evidence you are submitting at least bears on that element of the claim, it is very likely material.
Keep in mind this fact: new evidence doesn’t have to necessarily be the “smoking gun” that wins the claim; it need only be material to the element for which the claim was previously denied.
Here are some examples:
1) Blue Water Vietnam Veteran’s claim for compensation for his Parkinson’s Disease is denied because of lack of evidence of exposure to Agent Orange.
After denial by VA Veteran obtains evidence that the ship he served on passed into the inland waterways of the Republic of Vietnam. This evidence IS material: not only to the issue of service-connection, but it could also be material to the issue of effective date.
2) Blue Water Vietnam Veteran’s claim for compensation for his Parkinson’s Disease is denied because of lack of evidence of exposure to Agent Orange; even while denying the claim, VA concedes the current diagnosis of Parkinson’s Disease.
After the denial, the Veteran obtains evidence that his Parkinson’s Disease is getting worse and he really needs help. This evidence is probably NOT material to the issue of service-connection, and might not yield reopening of the claim. (As always, though, there is more than one way to skin a cat when it comes to VA claims – always be sure you talk to a lawyer about your claim to reopen before you give up on or withdraw your appeal).
3) VA denies Surviving Spouse’s claim for DIC (Dependency and Indemnity Compensation) on grounds that there is no evidence that the Veteran died from a service-connected condition. Years later, the Surviving Spouse gets an expert medical opinion that shows that the Veteran’s death was the result of lung cancer that is attributable to his exposure to asbestos while serving in the military. This evidence IS material evidence.
4) VA denies Surviving Spouse’s claim for DIC (Dependency and Indemnity Compensation) on grounds that there is no evidence that the Veteran died from a service-connected condition. However, while denying the claim, VA concedes that the Veteran was exposed to asbestos in service.
Years later, the Surviving Spouse gets an buddy statement from the deceased Veteran’s co-worker who has physical evidence that proves the Veteran was involved in asbestos removal in a military installation.
This evidence is likely NOT material evidence: since the VA has already conceded asbestos exposure, any new evidence on this point is probably not material. (Although, keep in mind, there is more than one way to ‘skin a cat’ in a VA claim – in the above scenario, I might argue that the new facts about exposure call into question the validity of any prior medical opinions on nexus, as they didn’t consider the full extent of the exposure to asbestos.
(I always recommend that you talk to a lawyer if the VA denies reopening your claim for lack of new and material evidence).
Don’t despair if you have new evidence and the BVA has told you it is not material. Many times, evidence can be used to prove more than one thing. For example, evidence of an in-service event is frequently used to prove not only the in-service event, but also that a particular condition is related to military service.
It’s really important that you have a Veterans disability compensation attorney look at any BVA decision that denies a request to reopen a claim based on new and material evidence. Frequently, the BVA doesn’t always see the materiality – or even the newness – of the evidence.
If the BVA has denied your request to reopen a previously denied or final claim, Veterans should strongly consider appealing to the Court of Appeals for Veterans Claims (CAVC).