CAVC Case 93-550: Depression

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · December 20, 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.

What would this rating pay you? (2026 rates)

Official 2026 VA monthly compensation, including the 2.8% COLA increase.

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per month · per year, tax-free

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

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Outcome

Dismissed / Vacated

Decision Date

December 20, 1994

Judge

NEBEKER, Chief Judge

Service Era

Not specified

Conditions Claimed

Depression Back Cervical Heart Diabetes Respiratory GI Eye Radiculopathy

Issues on Appeal

DepressionBackCervicalHeartDiabetesRespiratoryGIEye

Why It Was Decided This Way

In October 1972, an RO decision on appeal found "no evidence sufficiently new and material to warrant a rating change".

An August 1991 RO decision denied reopening of the veteran's claim for service connection for asthma, concluding that "[n]o new and material evidence has been presented which would permit reopening of the claim to grant service connection.

In the March 4, 1993, decision here on appeal, the Board found that the evidence received, after the Board's December 1972 denial, was new and material, and reopened the veteran's claim, but then denied it on the merits.

After reviewing the evidence, the Board determined that asthma "clearly and unmistakabl[y] preexisted service and was not aggravated thereby".

The Board found that the private medical records from 1940 to 1962 "do not specifically show the presence of asthma," and that they constituted new and material evidence.

§ 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.

First, it must 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.

If the evidence is new and material, the Board must then review it "in the context of" the old evidence to determine whether the prior disposition of the claim should be altered.

Authorities Cited

Abernathy v. PrincipiAkins v. DerwinskiAustin v. BrownBagby v. DerwinskiCaffrey v. BrownCox v. BrownGilbert v. DerwinskiHare v. DerwinskiHatlestad v. DerwinskiHunt v. DerwinskiJustus v. PrincipiLasovick v. BrownLittke v. DerwinskiManio v. DerwinskiOhland v. DerwinskiParker v. DerwinskiPayne v. DerwinskiPeyton v. DerwinskiQuarles v. DerwinskiRobinette v. BrownSchafrath v. DerwinskiSchaper v. DerwinskiSee Colvin v. DerwinskiSee Douglas v. DerwinskiSee Fletcher v. DerwinskiSee Gabrielson v. BrownSee Kinnaman v. PrincipiSee Laposky v. BrownSee Masors v. DerwinskiSee Russell v. Principi

Regulations Cited (38 CFR / 38 USC)

38 CFR 20.901(a)38 CFR 3.105(a) (1993)38 CFR 3.159 (1993)38 CFR 3.2(f)38 CFR 3.30438 CFR 3.304(b)38 CFR 3.304(b)(1)38 CFR 3.304(b)(1) (1993)38 CFR 3.306 (a)38 CFR 3.306(a) (1993)38 CFR 3.306(b)38 CFR 4.238 CFR 4.2 (1993)38 CFR 4.40 (1991)38 USC 111138 USC 113738 USC 115338 USC 3.304(b)38 USC 5107(a)38 USC 5107(b)

Denial Type

Credibility|Not New Material|Preponderance Against|Duty To Assist|Cue

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