BVA Case 92-622: Depression

The appellant has filed a brief requesting that the Court vacate the Board's decision denying his claims for back condition and arthritis, reverse the Board's finding that the evidence submitted to support his claim was not new and material, and reverse the Board's decision that the issue of the residuals of the right-ankle fracture was not properly before the Board for review.

In January 1990, the RO denied reopening of those claims, concluding that "[t]he evidence is new and material but does not establish a new factual basis for a grant of S[ervice] C[onnection]".

A January 1991 VA letter informed the veteran that his claims had been denied because "the evidence is new and material but does not provide a new factual basis for service connection for back condition, [and] arthritis".

In the January 9, 1992, BVA decision here on appeal, the Board found that, as to the claim of entitlement to service connection for the veteran's right ankle, the matter was not properly before it for appellate review, and "referred [that matter] to the attention of the [RO] for further consideration".

As to the back and arthritis service-connection claims, the Board found that no new and material evidence to reopen those claims had been presented or secured since the time of the March 1988 final RO decision and did not reopen the claims.

§ 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.

The Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material" when viewed in the context of all the evidence.

A Board 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.