Not Applying the Benefit of the Doubt

5. Using New and Material Evidence to Reopen Legacy Decisions

Introduction

This topic contains information on using new and material evidence to reopen legacy decisions, including

• not applying the benefit of the doubt
• presuming credibility of the evidence
• forms to reopen claims
• section 5103 requirements
• making new decisions after final decisions
• making new decisions before final decisions
• addressing materiality of evidence
• legacy appeals involving new and material evidence, and
• applying new and material evidence to character of discharge.

Change Date

July 23, 2024

7.J.5.a. Not Applying the Benefit of the Doubt

The standard for reopening claims prior to February 19, 2019, required the presentation or securing of new and material evidence. See 38 U.S.C. 5103A(f). The weight of the evidence was not considered. Therefore, the benefit of the doubt under 38 U.S.C. 5107(b) was not applicable to this issue.

Reference: For more information on the benefit-of-the-doubt rule, see Martinez v. Brown, 6 Vet.App. 462 (1994).

7.J.5.b. Presuming Credibility of the Evidence

When determining whether new and material evidence has been submitted to justify reopening a claim, presume the new evidence to be credible.

Note: Once a claim has been reopened, the presumption of the credibility of the evidence no longer applies, and the evidence must be weighed.

Reference: For more information on credible evidence, see Justus v. Principi, 3 Vet.App. 510 (1992).

7.J.5.c. Forms to Reopen Claims

On or after March 24, 2015, VA must receive a request to reopen a claim based on new and material evidence on a prescribed form. On or after February 19, 2019, a supplemental claim requires VA Form 20-0995, Decision Review Request, Supplemental Claim.

7.J.5.d. Section 5103 Requirements

Do not provide a case-specific Section 5103 notice to a claimant attempting to reopen a previously denied claim. The prior denial should have included the specific reasons supporting the decision and the evidence considered.

7.J.5.e. Making New Decisions After Final Decisions

To reopen claims decided prior to February 19, 2019, the following standards apply.

Under 38 CFR 3.156(a), a claim that is finally adjudicated under 38 CFR 3.160(d) cannot be reopened unless VA receives new and material evidence.

Important: The principles of reopening a claim under 38 CFR 3.156(a) do not apply when making a new decision on a claim that is final and binding, but not finally adjudicated (that is, within the one-year appeal period). In such cases, the claim must be reconsidered.

References: For more information on

• new and material evidence, see
• Shade v. Shinseki, 24 Vet.App. 110 (2010), and
• Manio v. Derwinski, 1 Vet.App. 140 (1991), and
• finality, see M21-1, Part X, Subpart ii, 1.A.1.c.

7.J.5.f. Making New Decisions Before Final Decisions

Consider and evaluate any new and material evidence that VA receives after issuing a decision and prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed. VA may consider such evidence to be filed in connection with the claim that was pending at the beginning of the appeal period.

Important: Rating narratives need not include the standard ne w and material text when decisions are not yet final. Claimants need not reopen non-final decisions, as a matter of law.

In Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), the court held that VA must directly respond to a new submission of evidence received prior to the expiration of the one-year appeal period, and that, until it does, the claim remains open. Therefore, ROs must continue to

• respond directly to any and all evidence submitted during the appeal period or before disposition of appellate decision (reconsideration), and
• evaluate such evidence on its merits and complete a formal decision that addresses the new evidence.

Reference: For more information on new and material evidence received within the appeal period, see 38 CFR 3.156(b).

7.J.5.g. Addressing Materiality of Evidence

The table below describes the proper handling of cases that require rating action to address the materiality of new evidence.

Scroll sideways to see the full table.

Reference: For more information on administrative denial of claims in which the claimant submits no evidence or duplicative evidence, see M21-1 Part X, Subpart v, 1.C.

7.J.5.h. Legacy Appeals Involving New and Material Evidence

A claimant may appeal a determination that evidence is not new and material.

Limit the SOC to that issue, citing all of the following in the summary of evidence and adjudicative actions:

• the date of the
• original denial
• notification of that denial
• receipt of the evidence submitted to reopen the claim
• finding that the evidence was not considered to be new and material, and
• notification of that decision, and
• the evidence submitted.

7.J.5.i. Applying New and Material Evidence to Character of Discharge

Statements and affidavits attesting to a claimant’s good character since their release from active duty are not material when the issue is the character of a claimant’s military service.

However, any new information VA receives after making an unfavorable character-of-discharge determination, which indicates mitigating circumstances behind the action(s) that resulted in the other-than-honorable discharge,

• is material, and
• warrants reopening the character of the claimant’s service.