BVA Case 97-1534: Depression

STEINBERG, Judge: The appellant, veteran Joe Elkins, appeals through counsel a May 6, 1997, decision of the Board of Veterans' Appeals (Board or BVA) that determined that new and material evidence had not been presented to reopen a previously and finally disallowed claim for Department of Veterans Affairs (VA) service connection for an acquired psychiatric disorder.

Relevant Facts This case was previously before the Court in 1993 when the Court affirmed an October 16, 1991, Board decision that new and material evidence had not been presented to reopen as to the same claim at issue in the instant appeal.

The question whether there was new and material evidence presented as of that date turned on two letters from the veteran's private physician, Dr.

The presumption of credibility of the evidence does not come into play.

The Court concludes, therefore, that the BVA was correct in finding that no new and material evidence had been presented.

Background The requirement that new and material evidence be presented before a previously and finally disallowed claim may be reopened derives from two statutory provisions.

Section 5108 of title 38, United States Code, 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.

The relevant regulation concerning reopening, in effect since January 22, 1991, describes new and material evidence as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the claim.