Gardberg & Kemmerly, P.C. Attorneys at Law

What is "New and Material Evidence"?

In many VA claims, the issue is whether new and material evidence has been submitted to reopen a claim? For example, a veteran hurts his knee during PT while on active duty. The veteran goes to the base clinic and complains of knee pain. He repeatedly sees the doctor at the base clinic for his knee.

Once the veteran leaves service he files a claim for his knee condition. He is now seeing a private physician. The VA obtains all of his medical records, but for some reason, the medical records from the base clinic are not in the file. The VA denied the claim stating there is no evidence of a knee problem while in service. The veteran does not appeal the claim. The claim is closed.

A few years later the veteran is to have knee surgery on the same knee and decides he will file another claim for his knee condition. In order to prevail, the veteran must show "new and material evidence" to reopen the application.

What is new and material evidence? VA regulations define new and material as:

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. ยง 3.156(a)

In the above cited example, new and material evidence would be evidence that establishes that something happened to the veteran's knee while he was in service and this evidence was not before the VA decision maker when the first denial was issued. If the veteran or the VA were to obtain the base clinic notes, new and material evidence would be found because the evidence was not before the original decision maker and the evidence deals directly with an unestablished fact: the knee condition happening while in service. This is a very simple hypothetical, but hopefully it explains how new and material evidence can help a veteran repon a claim.

If you are a veteran who is trying to reopen a claim with the VA, our attorneys are here to help.

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