BVA Case 90-1330: Depression

The appellant was advised that in order to reopen his claim, he "must submit new and material evidence.

The VA responded by advising that the April 1987 denial was final because appellant had not appealed within one year and that new and material evidence was required in order to reopen the claim.

In a rating decision dated January 9, 1989, appellant's claim was denied because the Notice of Disagreement (NOD) was "not timely filed" and because of the lack of new and material evidence.

§ 5108 (formerly § 3008) which states that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary [of Veterans Affairs] shall reopen the claim and review the former disposition of the claim.

First, it must be determined whether the evidence is "new and material"; second, if the evidence is "new and 5 material," then the claim must be reopened and the merits of the claim must be evaluated "in light of all the evidence, both new and old.

Here, the BVA did not specifically determine whether appellant had submitted sufficient new and material evidence to warrant reopening.

In reviewing a finding of fact made by the Board, the Court can only "hold unlawful and set aside such finding if the finding is clearly erroneous.

A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.