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General Counsel.


Recent court decisions have changed the analytical process VA must use when deciding whether to reopen disallowed claims. These decisions also have changed the obligations people must meet before VA must review disallowed claims on their merits.

It is becoming more difficult for VA claimants to present, develop, and prevail on claims to reopen disallowed claims. Following are some reasons for this as well as suggestions to minimize the problems:

Speaking Plainly

When VA denies an application for a benefit, the law gives the disappointed claimant the opportunity to have the disallowed claim reopened. According to Section 5108 of Title 38 United States Code, "if new and material evidence is presented ... with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim."

In 1990, VA issued a regulation to implement 5108. Section 3.156(a) of 38 CFR provides that "new and material evidence means evidence not previously submitted to the agency decision-makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim."

In plain language, if a person files new and significant evidence with the agency, VA must reopen the disallowed claim and decide the claim on its "merits."

In 1990, the Court of Veterans Appeals (CVA) issued a decision in the appeal of Colvin v. Derwinski. CVA defined the terms "new" and "material" differently than VA had in Section 3.156(a). The court said "new" evidence was anything not in the record at the time of the last decision, denying the claim. It defined "material" evidence as that creating a "reasonable possibility" of changing the outcome of the prior disallowed claim.

For eight years the Colvin test governed decisions on whether the agency should reopen prior benefit denials. Many people who filed such claims were disappointed under CVA's Colvin test.

However, on September 16, 1998, the United States Court of Appeals for the Federal Circuit (CAFC) issued a decision in Hodge v. West. CAFC rejected the legal, test adopted by CVA in Colvin v. Derwinski to govern adjudication of applications to reopen disallowed claims. CAFC held that CVA erred in adopting the Colvin test because it failed to defer to the reasonable definition of "material" evidence VA adopted in 38 CFR Section 3.156(a).

Under Hodge, VA could open a disallowed claim if the claimant presents "new" and "significant" evidence. This is a more beneficial standard for VA claimants than the "reasonable possibility of changing the outcome" standard CVA adopted and CAFC overruled in Hodge.

In February 1999, CVA issued two decisions that weakened the beneficial effect of CAFC's Hodge decision. In Winters v. West and Elkins v. West, CVA interpreted the law as requiring claimants who filed evidence adequate to "reopen" disallowed claims to also point to evidence that makes the claims "well-grounded." According to CVA, if the "reopened" claim is not well-grounded, VA has no obligation to assist the claimant and cannot address the claim's merits.

In Elkins, CVA said it applied CAFC's Hodge decision to Elkins's appeal from a Board of Veterans Appeals (BVA) decision finding that he did not file new and material evidence to reopen a disallowed claim. CVA remanded the appeal to BVA to determine in the first instance whether Elkins filed new and material evidence.

In the Winters decision, CVA noted BVA determined that new and material evidence had not been presented to reopen the veteran's claim for service-connection for posttraumatic stress disorder (PTSD). CVA said that, as a result of Hodge and Elkins, a three-step test is now required to determine if a disallowed claim may be reopened and reviewed (see box).

If you want to file an application to reopen a disallowed claim, the PVA General Counsel recommends the following:

* You must file "new" evidence--not previously submitted to VA.

* The "new" evidence must be "significant." Because VA administers so many different types of benefits, it is impossible to describe the characteristics of "significant" evidence. The type you submit will depend on the nature of your claim and evidence that is available to you.

* After you file "new" and "material" evidence, you have the obligation to file that which makes the claim "well-grounded." Generally, if the claim is for service-connection, you need the following types: medical proof of a current condition; medical, or in some instances, lay evidence, of a condition in service; and medical evidence of a nexus between the in-service and current condition.

* If you file evidence that makes the claim well-grounded, VA must help you develop the facts of your claim.

Once you succeed in filing evidence that is "new" and "material" that makes your claim well-grounded, and VA has assisted you fully, you are then entitled to a VA decision on the merits of your reopened claim.

Because of the growing complexity of presenting and prevailing on applications to reopen disallowed claims, we recommend you contact your PVA service officer before filing a claim to reopen. The current law is so complex and has so many pitfalls that it is important for you to present your best case to VA at the time you file an application. Your PVA service officer can guide you in the most efficient manner of developing and prosecuting a claim to reopen.

RELATED ARTICLE: Put to the Test

According to the Court of Veterans Appeals (CVA), the following three-step test determines whether disallowed claims may be reopened and reviewed:

1 The Board of Veterans Appeals (BVA) must consider if the veteran submitted new and material evidence under VA regulations, 38 CFR Section 3.156(a), and Hodge.

2 If the evidence is new and material, the board must then decide if the claim is well-grounded. According to CVA, a claim is well-grounded if it includes medical evidence of a current condition; medical, or in some instances, lay evidence of a condition in service; and medical evidence of a nexus [connection] between the in-service and current condition.

3 Only after the agency finds that a person filed evidence of a well-grounded claim can the agency evaluate the claim's merits.
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Author:Nelson, Robert
Publication:PN - Paraplegia News
Date:Sep 1, 1999
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