BVA Case 94-322: Anxiety

A July 1992 RO decision on remand from the Board concluded that the evidence of record 7 did not "establish that [the appellant] met the definition of insanity as provided in 38 C.

In the March 1994 BVA decision here on appeal, the Board concluded that, although new and material evidence had been submitted to reopen the claim concerning the character of his discharge, the evidence of record established that that discharge was a bar to VA benefits other than health care and related benefits under chapter 17 of title 38, U.

New and Material Evidence Under the applicable law, the Secretary must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured with respect to the basis for the disallowance of that claim.

§§ 5108 ("[i]f 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"), 7105(c) ("[i]f no [[NOD] is filed in accordance with this chapter within the prescribed period, the [RO] action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title"); Suttmann v.

First, it must be determined 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, both new and old", Colvin v.

171, 174 (1991), and when "the credibility of the [new] evidence" is presumed, Justus v.

Second, if the evidence is new and material, then the claim must be reopened and all the evidence of record reviewed to determine the outcome of the claim on the merits.

A Board determination as to whether evidence is "new and material" is a question of law subject to de novo review by this Court under 38 U.