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Sean Kendall

An Easy Guide to Reopening VA Claims Using New and Material Evidence


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5/11/2018
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When the Department of Veterans’ Affairs (“VA”) denies a veteran’s claim for benefits, it is nothing short of frustrating. The VA often denies claims for seemingly silly reasons – for example, VA officials might not be persuaded that a veteran’s disability is service connected, no matter how much the veteran explains that it is. While the veteran does have the opportunity to appeal decisions made by their Regional Office (“RO”) or by the Board of Veterans’ Appeals (“the Board”), many veterans are unable to dig up the evidence they need until the appeals deadlines have already expired. For those veterans, the best option is to find the evidence the VA is looking for and then reopen their claim at a later date.

When Can a Veteran Reopen a Claim?

Veterans can reopen claims for service-connected disability benefits, dependency indemnity compensation, or burial benefits as long as the veteran has secured “new and material evidence” and: 1) the original claim was denied, is over one year old, and has not been appealed; or 2) the original claim was appealed to the Board and the Court of Appeals for Veterans’ Claims (“the Court”) and was denied.

What is New and Material Evidence?

The VA will not reopen a claim unless the veteran is able to present evidence that is: 1) new; and 2) material. The “new” requirement simply means the VA cannot already have the evidence in its records. Redundant or cumulative evidence (evidence that reiterates a fact the VA is already aware of) is not considered new.

The “material” requirement is slightly more difficult to understand. For an item to be material, it must: 1) be relevant to the VA’s original reason for denying the claim, as stated on the veteran’s notification letter; 2) relate “to an unestablished fact necessary to substantiate the claim;” and 3) “raise a reasonable possibility of substantiating the claim.”

The VA’s website provides a helpful example of new and material evidence:

“A Veteran was treated several times during service for pain in the right elbow. He filed a claim for service connection in 1989, but his claim could not be granted because no orthopedic abnormalities were found on VA examination. Two years later, his private physician x-rayed the elbow and noted arthritic changes in the joint. The Veteran submitted the new evidence to VA. Because it suggested a residual of his in-service elbow problems did exist, VA reopened his claim.”

What is the Deadline for Reopening a Claim Using New and Material Evidence?

Once a veteran discovers new and material evidence, she or he can file to reopen the claim at any time, regardless of how long it has been since the original claim was filed.

How to Reopen a Claim Using New and Material Evidence

A veteran seeking to reopen her or his claim using material evidence should mail or deliver the evidence along with VA Form 21-526EZ to her or his closest RO.

What to Do if the VA Says Your Evidence is Not New and/or Material

Oftentimes, the VA will argue that the veteran’s evidence is not new or material. If they do, the veteran should consider an appeal. The Law Office of Attorney Sean Kendall has extensive experience appealing this type of denial and is available to assist veterans nationwide.

What to Do if the VA Considers Your New and Material Evidence and Still Denies Your Claim

If the VA agrees that the veteran’s evidence is new and material, yet denies the veteran’s claim, the veteran can file a substantive appeal. A veteran’s chances of successfully appealing a substantive denial rise significantly when they have the help of an experienced veterans lawyer. At the Law Offices of Attorney Sean Kendall, we have decades of experience with substantive appeals, and are confident we can win you the benefits you deserve. When you are ready to appeal, send us a note or give us a call at (877) 629-1712.



Category: Veterans Affairs

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