CAVC Case 91-1052: Back
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · January 6, 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
BackHearing LossEyeRadiculopathy
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Issues on Appeal
BackHearing LossEyeRadiculopathy
Why It Was Decided This Way
If the claim on appeal is a reopened claim and was properly reopened on the basis of new and material evidence under 38 U.
New and Material Evidence to Reopen However, should the Board determine that the NOD was not postmarked on or before August 3, 1989, and should this Court sustain such a determination as not "clearly erroneous" under 38 U.
§ 5108, a previously and finally disallowed claim must be reopened by the Secretary 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".
For purposes of determining whether evidence is "new and material", "the credibility of the evidence is to be presumed.
The determination as to whether evidence is "new and material" is a conclusion of law which this Court reviews de novo under 38 U.
On the facts of this case, the Court holds that the three lay statements and the veteran's testimony, assuming their credibility for purposes of determining whether they were "new and material", were probative and, when considered in the context of all the evidence, new and old, created a reasonable possibility of changing the outcome.
Hence, there was new and material evidence to justify reopening the claim on August 17, 1989, if it is determined that the August 3, 1989, NOD was not a valid NOD as to the original claim.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Credibility|Not New Material|Duty To Assist
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