Appeals Modernization Act: Changing Material to Relevant

4. Understanding New and Material Evidence

Introduction

This topic contains information on understanding new and material evidence, including

• Appeals Modernization Act: changing material to relevant
• importance of new and material evidence
• effect of new and material evidence
• definition of new and material evidence
• cumulative evidence
• reasonable possibility of substantiating the claim
• example of new evidence
• example of material evidence
• examples of new and material evidence, and
• examples of evidence not new and material.

Change Date

March 17, 2025

7.J.4.a. Appeals Modernization Act: Changing Material to Relevant

Effective February 19, 2019, Public Law 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act (AMA)) changed the evidentiary standard for reopening benefit decisions from new and material to new and relevant. In essence, the difference between material and relevant is that the latter has broader application. To be material, evidence had to specifically address at least one reason for the prior denial. However, to be relevant, evidence must simply help prove or disprove any matter at issue in a claim, or raise a theory of entitlement not previously addressed.

Material evidence still applies to appeals resulting from decisions made before February 19, 2019, including legacy appeals.

Reference: For more information on new and relevant evidence, see 38 CFR 3.2501(a).

7.J.4.b. Importance of New and Material Evidence

A claimant must submit new and material evidence to reopen a claim that has become final because the

• appeal period has expired, or
• appellate review is complete.

References: For more information on the definition of new and material evidence, see

• 38 CFR 3.156 (a), and
• M21-5, Chapter 7, Section J.4.d.

Note: Interpret 38 CFR 3.156 as creating a low threshold for reopening claims.

7.J.4.c. Effect of New and Material Evidence

VA’s determination that evidence is new and material means the evidence, by itself or when considered with evidence already of record,

• relates to an unestablished fact that is required to substantiate the claim, and
• raises a reasonable possibility of substantiating the claim.

New and material evidence reopens the previously denied claim, and may require VA to develop evidence before deciding the claim or appeal on its merits.

Note: VA may ultimately confirm and continue the previous denial if the evidence of record, while sufficient to reopen a claim, still fails to establish the facts necessary to substantiate it.

Reference: For more information on substantiating a claim, see M21-5, Chapter 7, Section J.4.f.

7.J.4.d. Definition of New and Material Evidence

Evidence is new if VA has not previously considered it.

Evidence is material if, by itself, or when considered with previous evidence of record, it relates to any 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 final decision, and must raise a reasonable possibility of substantiating the claim.

Reference: For more information on new and material evidence, see

• VAOPGCPREC 6-2014
• Cuevas v. Principe, 3 Vet.App. 542 (1992)
• Barnett v. Brown, 8 Vet.App. 542 (1995), and
• Bostain v. West, 11 Vet.App. 124 (1998).

7.J.4.e. Cumulative Evidence

Evidence that is merely cumulative is not to be considered new evidence.

Cumulative evidence reinforces a previously proven or conceded element of the claim, or merely rehashes previously submitted statements.

Important: Corroborating witness statements and supplemental medical nexus opinions are neither cumulative nor redundant if they address an element of the claim that has not already been proven or conceded.

7.J.4.f. Reasonable Possibility of Substantiating the Claim

The phrase, “must raise a reasonable possibility of substantiating the claim,” does not create a third element for new and material evidence. Instead, it provides guidance in determining whether the evidence submitted meets the new and material requirements.

The threshold of a reasonable possibility of substantiating the claim does not necessarily mean the new and material evidence must establish entitlement. It merely means that the new and material evidence must support or provide substance to the claim.

If newly submitted medical evidence, when viewed with the existing evidence of record, would be sufficient to trigger a VA examination under 38 CFR 3.159(c)(4), then the evidence is sufficient to reopen the claim.

When SC was previously denied because multiple facts necessary to substantiate the claim were not established, new and material evidence relating to only one of the facts may be sufficient to raise a reasonable possibility of substantiating the claim. Make that determination on a case-by-case basis. New and material evidence relating to a single unestablished fact will not be sufficient to reopen every claim.

Example 1: A claim for SC for a skin disorder showed dermatitis in service but a VA examination showed no current disability. The Veteran later filed a claim to reopen and submitted a medical record showing a diagnosis of a current skin disorder. No further records were identified or could be obtained.

Result: The claim for SC is reopened. Nexus information is not needed to reopen. The competent evidence goes to one element of the claim that formed the basis of the prior denial, providing a reasonable possibility of substantiating the claim. The new evidence, when viewed with the prior evidence, is sufficient to trigger VA’s duty to assist to provide a VA examination.

Example 2: A claim for SC for asthma found no complaints, findings, or diagnoses related to asthma in service. The VA examination was normal. VA denied the claim. The Veteran later requested to reopen and submitted private medical records showing that he was treated for upper respiratory infections in service. No further records were identified or could be obtained.

Result: The claim for SC is not reopened. The Veteran submitted new evidence on one element needed to substantiate the claim but there is still no evidence of a current disability. There is no reasonable possibility of substantiating the claim.

Reference: For more information on a reasonable possibility that new and material evidence would substantiate the claim, see Shade v. Shinseki, 24 Vet.App. 110 (2010).

7.J.4.g. Example of New Evidence

Situation: A Veteran files a claim for service connection (SC) for a back disorder and submits an examination report from a physician who reports diagnosing the Veteran with a back disorder five years after the Veteran was discharged from service. VA denies the claim in the absence of evidence of a relationship between service and the disability. Two years later, the Veteran attempts to reopen the claim by submitting an examination report from a second physician.

Explanation: If the second examination report

• only confirms the diagnosis of the first physician, VA would not consider the report to be new evidence, but
• if the report indicates the back disorder had its onset significantly closer to the Veteran’s discharge date, VA would consider the report to be new evidence.

7.J.4.h. Example of Material Evidence

Situation: VA previously decided that a current diagnosed back condition claimed by a Vietnam-era Veteran is not service-connected because it is not related to an in-service event, injury, or disease.

Explanation: If VA subsequently receives new evidence

• showing the claimant received treatment shortly after release from active duty, this evidence is material to the Veteran’s claim because it might establish the missing link between service and the current condition, or
• describing only the current severity of the claimed condition, over 50 years after service ended, the evidence is not material to the Veteran’s claim because it fails to establish the missing nexus between service and the current condition.

7.J.4.i. Examples of New and Material Evidence

The following are examples of evidence that are new and material and therefore,

sufficient to reopen a claim:

• after VA denies SC due to “no nexus,” the Veteran submits a new opinion from a specialist linking the condition to service and providing a rationale.
• after VA denies SC because “disability does not exist,” the Veteran submits medical report showing the existence of the disability.
• after VA denies SC for back injury as “not incurred in service,” the Veteran submits a lay statement for the first time from a friend who certifies witnessing the Veteran's back injury in service.

7.J.4.j. Examples of Evidence Not New and Material

The following are examples of evidence not new and material and therefore, insufficient to reopen a denied claim:

• a record photocopied from the claims folder that was considered in the previous decision
• a new medical nexus opinion incorporating an inaccurate history (see Reonal v. Brown, 5 Vet.App. 458 (1993) for more information)
• written testimony from an eyewitness that is substantially identical to a statement already on file
• a layperson’s assertion about the cause (but not the onset) of a disability, or
• medical evidence that reveals the existence of a disability when previous evidence already supported its existence.