BVA Case 90-744: Back

We find that the Secretary of Veterans Affairs (Secretary) prevented the veteran from presenting new and material evidence to reopen his claim by failing to fulfill the VA's duty to assist the veteran in developing his claim.

On April 7, 1989, the VA determined that the evidence submitted was not new and material and no reconsideration would be given to his claim.

On March 22, 1990, the Board found that, [t]he veteran's inservice [sic] injury was acute and transitory and resolved without identifiable residuals.

Analysis The Court notes at the outset that the BVA erred when it considered appellant's claim to be reopened without an analysis as to whether the newly submitted evidence was new and material.

On April 7, 1989, the VARO sent a letter to appellant stating that the evidence [he] submitted to reopen [his] previously denied claim is not new and material.

The VARO never stated, however, whether the evidence submitted was new and material.

Then, on June 22, 1989, when appellant requested reconsideration of his claim, the VA told him that if he had additional medical evidence which is new and material to [his] case to submit it.

The BVA decision made a conclusory statement that the veteran reopened his claim in November 1988 and proceeded to evaluate the merits of appellant's claim, without first determining whether there was new and material evidence sufficient to reopen the claim.