BVA Case 13-1245: Back

Specifically,the Board found that the October 1973 RO decision became final when the RO denied the substance of the hearing loss claim in September 2003 and the veteran failed to appeal that decision.

However,VA effective date regulations provide a special rule in certain circumstances when new and material evidence is involved.

4 VA has stated that,when new and material evidence other than service department records is received within an appeal period or prior to an appellate decision, [t]he effective date will be as though the former decision had not been rendered.

�New and material evidence received prior to the expiration of the appeal period,or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board .

Evidence is not new and material if it is either cumulative or redundant when compared to evidence already in the record.

156(b)requires VA to assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim.

156(b)that new and material evidence be treated as having been filed in connection with the pending claim, the Federal Circuit explained, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim,whether or not the relevant submission might otherwise support a new claim [for increase].

Because no other communication indicating an intent to seek service connection for a headache disorder was received until his most recent request to reopen,the Board concluded that Mr.