Understanding the VA’s jargon is sometimes difficult, especially as it relates to filing a claim. Understanding this jargon, however, can prove vital in receiving the benefits you are entitled to. When the VA denies a claim and that decision becomes final, a Veteran will need to provide ‘new and material evidence’ in order to reopen the claim. Without supplying the VA with new and material evidence, your claim cannot be reopened or considered. Often, it is in your best interest to appeal a decision before it becomes final, ensuring that you do not need to provide this evidence. For that reason, it is important to understand the deadlines for VA decisions.
When appealing a VA decision, it is vital that you understand the deadlines set forth:
Rating Decisions – become final one year after the notification date, unless you file a notice of disagreement.
Statements of the Case – become final 60 days after the decision date, unless you file a VA Form 9.
Board of Veterans’ Appeals Decisions – become final 120 days after the decision date, unless you file a motion for reconsideration or an appeal to the Court of Appeals for Veterans Claims.
No matter where your claim was in the decision-making process, a denial of service connection that becomes final must be reopened with new and material evidence.
As you might expect, there are two elements to satisfy for a claim to be reopened, and although the bar is relatively low, both elements must be met.
New evidence is something that the VA has not seen before. New evidence might be medical records, lay statements, or even medical treatises. However, in order to be considered new, the evidence must not be cumulative. That means if you have submitted medical records previously, and the new records submitted do not address what is needed to grant service connection, the claim will not be reopened. For example, submitting medical records that state the exact same thing as another medical record but from a different doctor are not considered new evidence. Instead, this is considered cumulative and cannot be used to reopen a claim.
The new evidence submitted must also be material, meaning that it has to relate to one of the elements of service connection. In order to determine whether evidence is material, you will first need to know why the claim was originally denied. Was it because there weren’t any in-service records of an injury? Were you denied due to a lack of a diagnosis? Was the claim denied because there was no connection between your in-service injury and current diagnosis? Once you determine why the claim was originally denied, you can work to fill in the gaps with new and material evidence.
Here are a couple of examples:
John files a claim for service connection for PTSD. He is a combat veteran who has never sought treatment for a mental health condition. The VA denies his claim without offering him an examination due to a lack of a current diagnosis, and he doesn’t appeal. Five years later, he seeks to reopen his claim for PTSD. This time, he has sought treatment for PTSD, and has a confirmed diagnosis from his psychologist. The treatment records would be new and material evidence sufficient to reopen the claim.
Mary files a claim for a knee condition. Her service medical records do not reflect that she had knee problems in service. The VA denies her claim based on a lack of evidence that she injured her knee in service. Some years later, Mary files to reopen her claim. She submits a lay statement from a fellow servicemember who remembers that she fell and injured her knee during service but was discouraged from reporting to medical. The statement would be new and material evidence sufficient to reopen her claim.
It is important to remember that the evidence has to be new, and it has to relate to an unestablished fact, whether that’s an in-service injury, a current diagnosis, or a relationship between the current condition and service.
Berry Law is dedicated to assisting Veterans appealing their unfavorable rating decisions. As Veteran owned and operated law firm, we pride ourselves in assisting Veterans in receiving due compensation. If you or somebody you know has been denied disability benefits or received a rating decision that should be increased, contact our team today and schedule a free consultation.
Of note: If you are reopening a claim and in the process of submitting new and material evidence, our team cannot assist with this process. Once the claim has been reopened and you are in the process of appealing a decision, that is when we can assist.
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