CAVC Case 91-1288: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · May 27, 1994 · 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.

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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

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Outcome

Denied

Decision Date

May 27, 1994

Judge

KRAMER

Service Era

July 1943 to December 1945

Conditions Claimed

Back Cervical Knee Shoulder Hip TDIU Eye

Issues on Appeal

BackCervicalKneeShoulderHipTDIUEye

Why It Was Decided This Way

KRAMER, Judge: Appellant, Gool Counts, appeals the April 15, 1991, decision of the Board of Veterans' Appeals (BVA or Board) which determined that new and material evidence had not been submitted to reopen appellant's claims of entitlement to service connection for residuals of an eye injury, a neck injury, a left hip injury, a left leg injury (other than the left knee scar), and a hiatal hernia.

In addition to the specific determination by the BVA, appellant's brief also raises the issue of a violation of the VA's duty to assist and the issue of clear and unmistakable error (CUE).

§ 5108, the Secretary must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured with respect to that claim.

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

must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.

The determination as to whether evidence is "new and material" is a question of law subject to de novo review in this Court under 38 U.

The Court finds that the BVA correctly determined that appellant had not submitted new and material evidence since the Board last denied his claims in July 1987.

On appeal, appellant contended that two records from the Surgeon General's Office submitted by appellant in 1988 constitute new and material evidence.

Authorities Cited

Bernard v. BrownBuzinski v. BrownCaffrey v. BrownCox v. BrownCulver v. DerwinskiDouglas v. DerwinskiDowell v. BrownFugo v. BrownGilbert v. DerwinskiGinnis v. BrownGobber v. DerwinskiGodwin v. DerwinskiGrivois v. BrownHerzog v. DerwinskiIvey v. DerwinskiJustus v. PrincipiLasovick v. BrownLittke v. DerwinskiLorenzano v. BrownManio v. DerwinskiMurincsak v. DerwinskiMurphy v. DerwinskiNagler v. DerwinskiPorter v. BrownRosalinas v. BrownRussell v. PrincipiSchafrath v. DerwinskiSee Caffrey v. BrownSee Gilbert v. DerwinskiSee Masors v. Derwinski

Regulations Cited (38 CFR / 38 USC)

38 CFR 20.20138 CFR 3.10338 CFR 3.103(a)38 CFR 3.103(a) (1993)38 CFR 3.15938 CFR 3.159 (1993)38 CFR 3.159(b)38 CFR 3.159(b) (1993)38 CFR 3.307(a)(1)38 USC 1112(a)38 USC 501(a)38 USC 510638 USC 510738 USC 5107(a)38 USC 510838 USC 7104(b)38 USC 7105(b)(2)38 USC 7105(c)38 USC 7252(a)38 USC 7261(a)(1)

Denial Type

Credibility|Not New Material|Duty To Assist|Cue

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