BVA Case 91-619: Back

The issue is whether certain material findings of fact by the BVA in its October l0, l989, decision should be held unlawful and set aside because they are "clearly erroneous" under 38 U.

In February 1988, the veteran reopened his claim at the RO on the basis of his submission of "new and material evidence".

§ 3008 (1988) 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.

Under section 3008, when a claimant seeks a reopening of his or her claim by submitting what is asserted to be "new and material" evidence, a "two-step analysis" must be performed: if the 4 evidence is determined by the regional office or the BVA to be "new and material", the claim is to be reopened; then a review is made to determine whether the former disposition of the claim should be altered.

As to the first step, the parties agree that new and material evidence was submitted by the claimant.

At oral argument, counsel for the Secretary acknowledged that the evidence submitted was considered by the BVA to be new and material.

In its decision, the BVA did seem to concede that new and material evidence had been submitted.

8, 1991), the question of whether newly submitted evidence is "new and material" under section 3008 is a question of law.