BVA Case 90-1360: Back

The appellant asserts that, although he did not submit evidence that was "new and material", under the precedents of this Court, so as to reopen his previously and finally denied claim, the Board was required to review his claim de novo pursuant to 38 U.

4105 (1988), or, alternatively, that his evidence must be considered new and material because the Board at the time of its prior decisions had been statutorily prohibited from considering similar evidence then submitted.

The Board noted: "No specific allegations of obvious error have been made with respect to these determinations in the current appeal.

The Board concluded that "the additional evidence consisting of personal hearing testimony does not reasonably establish that the veteran's [MS] is the result of his active service.

At oral argument on the present appeal, the Court requested the parties to submit supplemental memoranda addressing, inter alia, the issue of whether the scope of the VA's authority to reopen a claim in the event of new and material evidence was changed by the VJRA and whether the VA's practice with regard to reopening claims upon new and material evidence had been in conformance with the statutory requirements prior to the VJRA.

§ 5108 (West 1991), the Secretary of Veterans Affairs (Secretary) is required to reopen a previously and finally denied claim when "new and material evidence" is presented or secured with respect to that claim.

First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material".

Because the BVA did not apply the two-step Manio test, it is not clear from its decision whether the Board concluded that there was new and material evidence to reopen the veteran's claim for service connection of his MS.