CAVC Case 90-794: Back
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · April 28, 1992 · KRAMER
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
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Issues on Appeal
BackHearing LossHip
Why It Was Decided This Way
In response, the VARO issued a deferred rating decision explaining that service connection for his hearing problem was previously considered and denied since 1964; therefore, the only way the veteran could reopen his claim was by submitting new and material evidence.
Analysis The Board denied service connection concluding that: "The evidence submitted in support of the current reopened claim following a denial of service connection in March 1964, February 1982, and February 1988, rating actions does not establish a new factual basis warranting service connection for a bilateral hearing loss.
§ 5108 (formerly § 3008) 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.
First, the BVA must determine whether the evidence is `new and material'.
Second, if the BVA determines that the claimant has produced new and material evidence, the case is 4 reopened and the BVA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old.
If no new and material evidence is presented, then the BVA need not reach the second prong of the test and evaluate the merits of the veteran's claim in light of all the evidence, both new and old.
The Board made a conclusory statement that the veteran reopened his claim in August 1989 and proceeded to evaluate the merits of appellant's claim, without first determining whether the claim was actually reopened with new and material evidence.
The Court held that "to justify a reopening on a 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.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Not New Material
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