CAVC Case 90-1133: Back
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · September 30, 1992 · NEBEKER, Chief Judge
This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.
Official 2026 VA monthly compensation, including the 2.8% COLA increase.
Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.
2026 base rates, all ratings (veteran alone)
| Rating | Monthly (2026, incl. 2.8% COLA) |
|---|---|
| 10% | $180.42 |
| 20% | $356.66 |
| 30% | $552.47 |
| 40% | $795.84 |
| 50% | $1,132.90 |
| 60% | $1,435.02 |
| 70% | $1,808.45 |
| 80% | $2,102.15 |
| 90% | $2,362.30 |
| 100% | $3,938.58 |
Conditions Claimed
BackCervicalHeadacheEyeRadiculopathy
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Issues on Appeal
BackCervicalHeadacheEyeRadiculopathy
Why It Was Decided This Way
In the decision under appeal, the Board determined that the evidence the veteran had submitted after the 1987 decision did not provide a new factual basis for establishing the claim.
140 (1991), we review the newly-submitted evidence to determine whether it was "new and material" evidence that would require the Board to reopen the claim.
Once a claim has been disallowed by the Board, the claim may not thereafter be reopened and allowed unless new and material evidence is presented or secured with respect to the disallowed claim.
The question of whether newly submitted evidence is 'new and material' under section [5108] is a question of law.
The "bright line" rule in other federal courts is that to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.
In passing, we note that if appellant is able to support his contention that his current back symptomatology is the result of his 1985 surgery, he may reopen his claim for a service- connected disability by submitting new and material evidence on that issue.
Any new and material evidence should be viewed as true for the limited purposes of reopening a final decision.
It should be weighed for its persuasiveness or credibility after the finality veil is lifted--not before.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Credibility|Not New Material
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