CAVC Case 98-446: Heart
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · September 20, 1999 · 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.
Official 2026 VA monthly compensation, including the 2.8% COLA increase.
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 |
Conditions Claimed
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Issues on Appeal
Heart
Why It Was Decided This Way
FACTS On January 29, 1998, the Board of Veterans' Appeals (BVA or Board) found that new and material evidence had not been submitted to reopen the appellant's claim for entitlement to service connection for congenital heart disease.
156(a) (1998), concerning the criteria for determining whether a person has submitted new and material evidence to reopen a claim.
The Board concluded that "new" evidence had been submitted by the appellant, but following an impermissible assessment of the credibility and weight of the newly submitted medical evidence, determined that it was not "material.
On December 28, 1998, the appellant filed a motion for summary remand in lieu of an opening brief, articulating two reasons why the Court should remand the matter: (1) the BVA's credibility assessment of newly submitted medical evidence while making its materiality determination, which was contrary to law; and (2) the change in law precipitated by Hodge.
In his reply to the Secretary's opposition, the appellant argues that because the Secretary responded only to the issue of EAJA fees based on the Hodge remand, and did not address the appellant's other basis for remand (the BVA's erroneous credibility assessment during the "new and material evidence" determination), this "constitutes an abandonment of any opposition to an EAJA award on that basis.
Accordingly, the Court's decision to deny the EAJA application in Clemmons controls as to whether the government was substantially justified because the sole catalyst for the remand in the instant case, as in Clemmons, was the change in the case law pertaining to the definition of new and material evidence.
The Secretary failed to address the "non-Hodge" remand basis, which was argued in the appellant's motion, subsequently granted, for remand.
In this case, in determining that new and material evidence had not been submitted to reopen the appellant's claim, the BVA stated: The Board has a duty to assess the credibility and weight to be given to medical evidence before it.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
Credibility|Not New Material
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