The VA must decide new claims on the merits. The “duty to assist” provision apply. What makes a claim new? The basic rule is for each different type of injury, disease, or disability that is the subject of a request for benefits is a new claim even if the symptoms overlap with a prior claim based upon a different injury, disease, or disability. Claims for an increased disability rating for an already recognized disability are also considered original claims, but if the prior claim was denied, it may be a reopened claim.
When a person appeal from an original assignment of a disability rating, the claim is treated as original because the original claim never became final. This means that keeping the claim open by appealing can enable a person to receive benefits starting with the original date of the veteran’s claim. It also means that it is not necessary to meet the “new and material evidence” standard of a reopened claim.
There are some other claims that are treated as new. These claims include claims for non-service connected pension benefits, claims for service-connected disability compensation based upon service as a prisoner of war (POW), and claims to restore competency. Claims to restore competency are claims that occur after a VA beneficiary is declared mentally incompetent. The subject of the claim is whether the vet has regained competency.
Claims are also treated as new if laws or regulations create a substantive create a new basis for the benefit being sought. The change must be more than merely procedural. A key element with these claims is whether the law or regulation involved a reason for which the previous claim was denied. For example, if the old law requires proof of A, B, and C, and the veteran loses because the veteran could not prove C, then a new law requiring proof of A, B, C, and D could not be used as a new claim because the veteran still does not have proof for element C.
A Special Category – What if new relevant service records are received during a claim?
While not technically “new,” when after denying a claim, the VA receives “relevant official service department records that were not included with the original claim file at the time of decision the VA will reconsider the claim. Under these circumstances entitlement can be based upon the date the VA first received the claim. The “duty to assist” requires that the VA help gather both necessary service records and medical records.
Within the VA, “Final denial” means a denial was unsuccessfully appealed to the highest possible level, or the right to appeal to the next level expired before an appeal was filed. A “reopened claim” is a claim for a VA benefit that is filed after a final denial is of a claim for a benefit. If evidence is submitted during the time for appeal then it will be considered by the VA as part of the original claim. Before being considered, reopened claims must include “new and material evidence.” Sometimes the new evidence standard is met merely by including a new doctor’s report that is similar to reports from prior doctors.
There are only three major types of claims that can potentially be reopened claims:
- Claims for service connection of a veteran’s disability;
- Claims filed by a surviving family member for service-connected death compensation (DIC); and
- Claims for burial benefits.
What makes reopened claims a potentially powerful and unique tool?
- There is no time limit for filing a reopened claim.
- There is no limit on the number of times a veteran can file reopened claims
- It enables veterans to fix earlier errors by submitting new or additional evidence. Errors can happen either because a veteran forgets to include important proofs for an element of their claim, or because the VA wrongly decided the case the first time around.
- The “duty to assist” requirement may force the VA to obtain additional evidence or provide a medical evaluation.
When a veteran prevails after filing a reopened claim payment is based upon the date of the reopened claim and not the original claim unless the veteran proves that the denial of the original claim was based upon a clear and unmistakable error.
How are reopened claims decided?
A two step process is used by the RO and BVA. The VA must determine:
- Whether the claim should be reopened because the claimant has submitted new and material evidence;
- If new and material evidence has been submitted, whether the claimant is entitled to the benefit sought, considering all the evidence of record, both new and old, and reviewing the case on without giving any weight to any previous VA decision denying the claim or to the fact that the VA may have previously disbelieved some of the old evidence. Lawyers refer to reviewing a case as new as a “de novo” review.
- The VA has a duty to assist. With both new and reopened claims, they will request any existing records from Federal agencies or non-Federal agency sources, if reasonable identified by the claimant and relevant to reopening a claim. However, without additional material evidence, the VA is not obligated to provide a medical examination for a reopened claim.
What is new and material evidence?
The definition that is being used on all claims after August 28, 2001 provides:
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence, that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
Initially the RO will decide if “new and material evidence” is being presented. If the answer is “no” then they will not proceed any further. Even if the RO decides that “new and material evidence” is being presented, if a claim goes to the BVA, the BVA will do their own analysis. If the BVA does not agree that “new and material evidence” is being presented then the BVA will not proceed.
New and material evidence should be evidence that addresses a reason that original claim was denied. It should be evidence that “must be so significant that it must be considered in order to fairly decide the merits of the claim.”
What are examples of new and material evidence?
- Claim denied for lack of a service connection. Claimant submits buddy statements confirming injury and subsequent complaints
- Claim denied for lack of a current condition with a medical nexus. Claimant submits a current doctors report indicating the condition is present and longstanding. Claimant already had medical records showing onset during service.
Claims for Revision of a Previous Final RO Decision Based upon Clear and Unmistakable Error (CUE)
Claims based upon CUE in a previous final RO decision are treated as original claims rather than as reopened claims. This gives successful claimants the advantage of receiving benefits based upon the earlier filing date of the original claim.
What are the procedures for CUE claims?
Claims based upon CUE can be filed at any time, even decades after the RO decision. CUE claims follow the same procedures as other claims. This means that the denial of a CUE claim can be appealed to the BVA and then to the CAVC.
There is a “pleading” requirement when presenting a claim for CUE. The issue of CUE must be set forth with specificity as to when and how the CUE occurred. It is not enough for a claimant to state simply that the RO was wrong. Setting forth a detailed argument identifying the error is essential to prevail in a CUE claim. Typically, these arguments and the necessary analysis are best performed by experienced veteran appeals attorneys who understand the intricacies of the law and how to best present the relevant facts, law, and issues.