CAVC Case 90-1540: Depression
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · February 9, 1993 · 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
DepressionAnxietyPsychiatricBackEye
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Issues on Appeal
DepressionAnxietyPsychiatricBackEye
Why It Was Decided This Way
The hearing officer concluded that the evidence submitted subsequent to the 1953 Board decision was not considered new and material, and that the prior rating decision was "not found to be in error.
§ 5108 (West 1991) which states: If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
The Secretary further noted "that the [BVA] decision contains no genuine discussion of the applicability of the benefit of the doubt/reasonable doubt principle, contained at 38 U.
In addition to recognizing the Board's failure to consider all the evidence of record, this portion of the Secretary's motion essentially conceded the error as argued by appellant in his brief: 5 that the BVA failed to consider the sworn testimony given by appellant at a personal hearing as evidence and to assess its credibility; that the BVA decision failed to give a full and complete explanation of its decision as required by Gilbert v.
§ 7104(d)(1) (West 1991); and that the Board failed to apply the reasonable doubt standard correctly to his case.
The issue of whether "new and material" evidence was submitted is a legal question that this Court reviews de novo, without deference to the BVA's findings.
The Court finds as a matter of law that appellant submitted new and material evidence, as there was "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.
On the foregoing analysis, therefore, the case would normally be remanded to the Board for a proper evaluation of all the evidence submitted, for consideration of appellant's testimony as evidence and an assessment of its credibility, and for a clear statement of its decision, with articulation of the reasons or bases therefor.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Credibility|Not New Material|Duty To Assist
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