The VA minimizes large legal hurdles in a disability benefit claim by allowing Veterans to reopen closed claims after the VA has issued a final denial.
Though most Veterans and veteran service organizations put the primary focus of disability benefit claims upon medical evidence, in the end VA claims are legal procedures. They are specific remedies requested from a federal administrative agency and are governed by federal statutes, federal regulations, and judicial precedence. As with any legal proceeding, some of the toughest barriers to a remedy sought are the deadlines – often the statutes of limitations or the statutes of repose. In allowing a Veteran to reopen a claim after the VA has issued a final denial in that very same claim, the VA has made it more possible that no valid claim should ever be uncompensated, even if the Veteran misses every single deadline.
Congress allows Veterans to reopen their claims by way of 38 U.S.C. § 5108, which states “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.” 38 C.F.R. § 3.156(a) states:
….New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
A key phrase that is often misunderstood in this pertinent section of the C.F.R. is “relates to an unestablished fact necessary to substantiate the claim.” The three important elements in this phrase are (1) the evidence has to relate to a fact, (2) the fact must be previously unestablished, and (3) the fact must be necessary to substantiate the claim. There is also the requirement that the evidence must be new, but new is a concept readily grasped by most lay persons. The only quirk about the evidence being new is that the VA defines new as evidence not previously submitted to agency decisionmakers. This means that evidence discussed by or submitted to individuals not deemed as agency decisionmakers is still fair game to submit.
A fact is a legal term of art. Facts are “[a]n actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation….” Element 1 discussed above (that the evidence has to relate to a fact) means that the new evidence submitted must address a question of fact, such as whether a Veteran was sexually assaulted by a superior officer or whether a motor vehicle accident occurred while a Veteran was still in service, and cannot address a question of law, such as whether a Veteran’s PTSD claim should be service-connected. The difference is subtle, but an over-simplified example can be the following:
Expert evidence stating “Mr. Veteran was not incarcerated between the dates of September 12, 2013, and December 27, 2014” addresses a question of fact.
Expert evidence stating “Ms. Veteran is entitled to VA Pension” addresses a question of law.
Element 2 discussed above (that the fact must be unestablished) means that the new evidence must not relate to a fact that the VA has already agreed to. For example, a Veteran files a claim for her lower back pain by submitting evidence of:
(a) an in-service injury,
(b) a current diagnosis for a lower back condition, and
(c) a letter from her brother stating that the Veteran has continuously complained about the same lower back symptoms since her discharge.
The VA denies her claim, stating that (a) she did indeed have a lower back injury while in-service and (b) she does indeed currently suffer from a lower back condition; however, she was involved in an automobile accident two-years after she left the military and the C&P examining orthopedic doctor opined that (c) her current back condition was not a causative factor of her current condition. In order for the new evidence to be unestablished, it must not relate to (a) or (c). Submitting new evidence that she had an in-service injury or that she currently suffers from a lower back condition would not relate to an unestablished fact because the VA has already agreed to these facts – thus they are already established. The Veteran would need to submit new evidence relating to the fact that the in-service injury, and not the automobile accident, caused her current back condition, such as a medical opinion letter from a new physician.
The last element, element 3 discussed above (that the fact must be necessary to substantiate the claim), is common sense. If the same Veteran with the lower back condition were to submit evidence that she has three siblings, it would relate to an unestablished fact because the VA has not established the number of siblings she has; however, the number of siblings had no bearing upon her claim for service-connection for her lower back and therefore it is not necessary to substantiate her claim.
The courts have issued no precedential guidance on how substantial this new evidence must be, but there are non-precedential guidelines that a Veteran or veteran’s advocate would be wise to heed. In Shade v. Shinseki, 24 Vet. App. 110 (2010), Judge Lance stated in a concurring opinion:
The essential issue in this case is the proper relationship between the new-and-material evidence standard to reopen a claim and the standard for triggering the Secretary’s duty to provide a medical examination under 38 U.S.C.S. § 5103A(d). In cases where medical evidence is necessary to prevail, the two standards are the same. In other words, if the VA determines that the new evidence when viewed with the old evidence would be sufficient to trigger a medical examination, then the evidence is sufficient to reopen and a medical examination must be provided. Similarly, if the evidence supporting the claim is insufficient to trigger the duty to assist when the old and new evidence is considered together, then the new-and-material standard has not been met and the claim should not be reopened.
It is important to note here that this only applies in cases where medical evidence is needed to prevail. There are cases when the missing evidence is strictly lay. It is also important to note that the suggested requirement of triggering a medical examination includes both the new evidence and the evidence of record.
Even if a Veteran does not meet the requirements for the new evidence to be considered new and material, he or she can always simply gather even more evidence and file for yet another reopen. There is no time limit on when a Veteran can file to reopen a claim and there is no limit on the number of times a Veteran can reopen his or her previously denied claims.
 Black’s Law Dictionary 628 (8th ed. 2004).
 Shade v. Shinseki, 24 Vet. App. 110, 123 (2010) (Lance, J., concurring).