BVA Case 91-1288: Back

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.