holding that new and material evidence to reopen must be presented “since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits” (emphasis added)
How later courts described this case
- holding that new and material evidence to reopen must be presented “since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits” (emphasis added)
- finding that the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance
- determining that had evidence previously found not to warrant reopening been considered as “newly presented” evidence for purposes of current claims to reopen, there would have been new and material evidence to reopen
- holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened
Written by the judges who cited it.
The opinion
NEBEKER, Chief Judge,
concurring:
I concur in the result, but I am not sanguine that the part of the opinion addressing new and material evidence will aid individuals dealing with reopening in the task of sorting through the myriad efforts by older veterans to resurrect their claims. My concurrence is based on what I believe the reasoning of the Court should be in this regard, which is:
A reopening analysis requires that the currently submitted evidence be presumed credible for purposes of deciding whether it is new and material, and, if so, whether it is possibly productive of a different result. Combining the two questions of materiality and possible different result, as the Court’s opinion does (opinion at 14), is a legal impossibility. New evidence can be material, but of such de minimis weight that it could not possibly produce a different result.
This currently presented evidence must be viewed in light of all previously submitted evidence, i.e., that which was considered in a final denial on the merits and any evidence submitted thereafter in an unsuccessful earlier effort at reopening. The latter evidence is to be presumed truthful for the reopening inquiry, but, as with the current evidence, is then subject to a determination of relevance again, and, if so, of its credibility if the former disposition is reviewed on reopening.