Andover, NJ - In November 2010 the U.S. Court of Appeals for Veterans Claims decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010). In our opinion, this is a pro-veteran decision that warrants emphasis.
The regulation pertaining to reopening claims is 38 C.F.R. § 3.156(a). This regulation defines what constitutes new and material evidence. As discussed in prior articles, to reopen a claim you must submit “new and material” evidence. Any evidence that did not exist before will be considered “new”. As such, there is not too much debate on what constitutes “new”. Materiality, however, is more difficult to define. Section 3.156(a) of the regulations provides some guidance. It states that material evidence is evidence that “relates to an unestablished fact necessary to substantiate the claim.” The regulation goes on to state that the evidence must raise a “reasonable possibility” of substantiating the claim.
The Court in Shade noted that the requirement to submit “new and material” evidence does not apply to each previously unproven element of a claim. In addition, the Court noted that the regulation must be read in the context of a likely VA medical examination if the claim is reopened. Specifically, in Shade the veteran was previously denied because his claim lacked (1) a current diagnosis, and (2) a connection with service. He submitted a doctor’s report establishing the requisite current diagnosis. However, the Board denied the claim because he did not submit any evidence that addressed the “connection” with service.
The Court ruled that the materiality issue must be viewed in the context of VA’s duty to assist. In other words, new evidence would be material if, combined with VA’s duty to assist, it would raise a reasonable possibility of substantiating the claim. This means that the Board can no longer refuse to reopen a claim simply because the new evidence you submit is not a medical opinion linking the disability to service.
Despite this favorable ruling, we still recommend that veterans submit medical evidence connecting their disabilities to service.