CAVC Case 91-1683: Back
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · June 2, 1994 · 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
BackCervicalHipHeartEyeArthritisHypertension
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Issues on Appeal
BackCervicalHipHeartEyeArthritisHypertension
Why It Was Decided This Way
In the June 1991 decision here on appeal, the Board denied the appellant's claim.
The Board concluded that no new and material evidence had been submitted since the 1985 BVA denial of the kidney claim, and, therefore, denied reopening of that claim.
Merits of the Kidney-Disorder Claim We must now determine whether, as the Board required, there must be new and material evidence in order for the appellant to pursue an accrued-benefits claim based on her deceased husband's claim which was pending at his death.
Analysis of those provisions yields the conclusion that there must be new and material evidence before the accrued-benefits claim may be considered, just as would have been the case if the veteran had himself been re-presenting the compensation claim.
The Board concluded that no "new and material" evidence had been submitted since the April 1985 BVA decision disallowing the veteran's claim for service connection for a kidney disorder, and it thus declined to adjudicate on the merits the appellant's claim for accrued benefits for the veteran's kidney disorder.
§ 5108 provides: "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.
Therefore, just as the veteran was required to submit new and material evidence in order to obtain reopening and readjudication of his kidney claim during his lifetime, so there must be new and material evidence in order for the accrued- benefits claimant to obtain full adjudication of the accrued-benefits claim based upon "the same 11 factual basis" as the veteran's denied service-connection claim.
Hence, the appellant may receive a merits adjudication of her accrued-benefits claim based on the veteran's kidney disorder claim only if there is new and material evidence, as described below, since the time of the BVA's April 1985 denial of the veteran's service-connection claim based on that disorder.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Credibility|Not New Material
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