BVA Case 08-3983: Ptsd

DVA informed Akers that her claim could only be reopened if she submitted new and material evidence.

DVA initially denied Akers’s request to reopen her claim on the ground that Akers had not submitted new and material evidence.

The Board found that Akers’s Form 9 submission was a substantive appeal and that Akers did not attempt to reopen her claim until July 2004.

The Board found “no evidence revealing that [Akers] indicated an intent to apply for [dependency and indemnity compensation] benefits between the prior final disallowance of the claim in June 2002 and the date of the receipt of the claim to reopen on July 21, 2004.

The Board concluded, “As the re- cord contains no such communication or action from the appellant until July 21, 2004, there is no factual or legal basis to assign an earlier effective date.

In order for the September document to have consti- tuted a claim to reopen, it would have needed ac- companying new and material evidence.

§ 5108, requires that new and material evidence actually accom- pany a claim to reopen.

Rather, Akers argues, both provisions require only that new and material evidence be submitted at some time before the request to reopen can be granted.