BVA Case 20-0412: Back

In a 2018 decision that was eventually appealed to this Court,the Board interpreted his CUE assertion as contending two things: that the Board failed to consider whether his attendance at a language school qualified him for benefits,and that it failed to obtain a document,specifically an NGB Form 23B,which credited him with 21 days of active duty � potential proof that he was full time.

The Board rejected both arguments because the first involved reweighing facts and the second was based on a failure to fulfill the Agency's duty to assist;neither could support a valid CUE motion.

Because the newly considered laws didn't resolve the matter,the Board concluded,it remained a question of fact as to whether the veteran's attendance at language school qualified him for benefits.

In making this point, the Board noted that,even if the veteran had the 21 days of active duty shown by his NGB Form 23B,he was in the ranks for roughly 6 months,and there was no way of knowing whether those 21 days were performed at the time he attended the language school, and particularly when he experienced psychosis.

That finding is implicit in the Board's interpretation of his CUE argument, that the Board failed in 2014 to retrieve and consider the document,something he's never contested.

As the Board found,there was no way to tell when he conducted those 21 days of active duty.

As the Board noted,the veteran's failure to demonstrate that he had a period of qualifying service was the dispositive factor in the January 2005 decision;he simply could not obtain benefits without satisfying this threshold determination.

Therefore,for evidence to be considered new and material for purposes of reopening his claim,it had to relate to this point.