noting shift in the generally applicable standard of review of a new and material determination by the Board to “clearly erroneous” review from de novo review, see, e.g., Jones v. Derwinski, 1 Vet.App. 210, 213 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1990)
How later courts described this case
- noting shift in the generally applicable standard of review of a new and material determination by the Board to “clearly erroneous” review from de novo review, see, e.g., Jones v. Derwinski, 1 Vet.App. 210, 213 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1990)
- noting that after reopening claim based on new and material evidence Secretary “must determine” whether claim is well grounded “in terms of all the evidence of record in- support of the claim”
- vacating BVA decision that had applied Colvin and remanding for consideration of whether new and material evidence, as defined by § 3.156(a), had been presented to reopen claim
- Court will not remand due to failure to consider pertinent regulation when such failure “would not be prejudicial to the claimant”
Written by the judges who cited it.
The opinion
HOLDAWAY, Judge,
concurring:
I concur entirely with the excellent opinion of Judge Steinberg. I write separately only to give some insight as to how and why the necessity for this en banc opinion arose. The Colvin case, which was reversed by the Federal Circuit in Hodge, was decided 8 years ago. Many eases applying this rule have been reviewed by the Court and the Federal Circuit. Most decisions I have reviewed from the BVA have cited both the Colvin rule and the regulation as the legal basis for the administrative decision. I know of no case where it was argued that the two standards were inconsistent, that one rule was more rigorous than the other, or that the BVA had any difficulty in reconciling the Colvin standard with the regulation. I do not rule out the possibility that such an argument may have been raised.
Furthermore, I am aware of no claim that this test “undermined the operations of the veterans benefit system.” See Hodge, 155 F.3d at 1364. As a veteran who served more than 30 years on active duty, I would have been sensitive to such an argument. Be that as it may, there is no doubt that the Hodge case, as it interpreted Colvin and the regulation, significantly reduced the standard of materiality for reopening a finally decided claim. This is not because the regulation requires less from a veteran than does the “reasonable possibility” test of Colvin. Indeed, it is difficult to envision that evidence could be “substantial” or “significant” (the key words of the regulation) unless there was at least a “reasonable possibility ” that the claimant might ultimately prevail. True, there may have been some who confused “possibility” with “probability” or “likely,” see Hodge, 155 F.3d at 1359, but the diligent and correct use of a dictionary would be the appropriate remedy for those few cases.
In any event, the Colvin test, properly understood and properly applied, is not necessarily a more rigorous standard than the regulation, as the Federal Circuit concedes in the Hodge opinion. See 155 F.3d at 1360 (concluding that the Colvin test “may be inconsistent”). However, the gloss that the Federal Circuit inexplicably added to the regulation (and by extension to the statute), after chiding this Court for doing the same, certainly does lower the bar. If all that is required for materiality is that “it contribute to a more complete picture” (what wouldn’t?) or that it be found material solely out of concern for an “appearance of fairness,” then the concept of materiality has been pretty well done away with, and the congressional intent to provide at least a minimum degree of finality has been eviscerated. As I wrote in Colvin, there is no conflict between the regulation and the “reasonable possibility” test. If properly understood, the latter complements the former by adding some substance and objectivity to its obscurity and total subjectivity. Nonetheless, the gloss that the Federal Circuit added to the regulation in Hodge has undoubtedly changed the dynamics of “materiality.” It is now the task of this Court to faithfully implement the new standard. The opinions filed today in this case and in the Winters case do just that and they do it very well.