BVA Case 96-1522: Back

FARLEY, Judge : This is an appeal from an October 24, 1996, decision of the Board of Veterans' Appeals (BVA or Board) which determined that new and material evidence had not been submitted to reopen the veteran's claims for service connection for: (1) residuals of an injury to the left elbow; (2) carpal tunnel syndrome with left ulnar neuropathy; (3) a heart disorder; (4) post- operative residuals of vocal cord lesions; (5) residuals of a neck injury; and (6) post-operative residuals of removal of a birthmark on the neck.

The Board also found that new and material evidence had been submitted to reopen the veteran's claim of service connection for residuals of a right femur fracture and remanded the claim for development.

It determined that the evidence submitted to open the heart claim did not relate the condition to service and was not new and material.

The exception to these rules states that [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.

Therefore, once a Board or an RO decision becomes final under 7104(b) or 7105(c), the Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.

167, 171 (1996) (When new and material evidence has not been submitted in a previously disallowed claim [f]urther analysis .

The three prongs of the new Elkins test are as follows: (1) the Secretary must first determine whether the veteran has presented new and material evidence under 38 C.

5108; (2) if new and material evidence has been presented, immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the reopened claim (as distinguished from the original claim) is well grounded pursuant to 38 U.