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12.2. Reopening Disallowed Claims

In order to reopen a case that has become final, an appellant must submit evidence that is both new and material.  38 U.S.C. §§ 5108, 7104(b).  Failure to do so precludes reopening of the claim.  To be material the new evidence must be probative and must be of such significance that, when it is viewed in the context of all the evidence, old and new, there is at least a reasonable possibility that the result would thereby be changed.  Evans v. Brown, 9 Vet. App. 273 (1996); Cox v. Brown, 5 Vet. App. 95, 98 (1993).  38 C.F.R. section 3.156(a), states the same principle in a slightly different, if somewhat vaguer and more subjective way, i.e., the "new" evidence must be of such significance "that it must be considered in order to fairly decide" the claim.  Nici v. Brown, 9 Vet. App. 494, 496 (1996).

Pursuant to 38 U.S.C. section 5108, "[i]f 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 U.S.C. § 5108.  "New and material evidence" is defined as follows:

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.

38 C.F.R. § 3.156(a).  When evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law.  Allday v. Brown, 7 Vet. App. 517, 527 (1995).

The Court reviews whether evidence is new and material under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); see Elkins v. West, 12 Vet. App. 209, 216 (1999) (en banc).  

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