BVA Case 21-6135: Psychiatric

Under the heading “Summary of Evidence and Adjudication Actions,” the Statement of the Case lists and describes the alleged new and material evidence, including the February 20, 1979 hospital report, stating that Mr.

We start our interpretation analysis with the language of the regulation at issue: New and material evidence received prior to the ex- piration of the appeal period, or prior to the appel- late decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original ju- risdiction by the Board of Veterans Appeals with- out consideration in that decision in accordance with the provisions of § 20.

156(b) thus “provides that the VA must treat (1) new and material evidence (2) re- ceived prior to the end of the appeal period (3) as having been filed in connection with the claim that was pending at the beginning of the appeal period.

There, the VA evaluated whether the evidence it received supported a new claim but failed to consider whether it con- stituted new and material evidence for a pending claim.

And “nothing in the record indicate[d] that the RO or Board” determined whether the evidence submitted was new and material.

submission contained new and material evidence relating to his [pending] claim.

156(b), but rather there must be at least some indication that “the VA deter- mined whether the submission is new and material evi- dence and, if so, considered such evidence in evaluating the pending claim.

Later, when he filed another TDIU claim, the veteran argued that his 2004 claim was still pending because the RO did not explicitly state whether VA Form 21-8940 was new and material evidence to his claim seeking a higher CAD rat- ing.