Beraud v. Shinseki, docket no. 11-726 (Vet. App. May 17, 2013)
A pending claim based on the submission of new and material evidence can be terminated by a subsequent rating decision on the same issue – even if that later decision did not consider the new and material evidence. In this case, the veteran submitted a claim for benefits in March 1985. In November 1985, the RO sent a letter to the veteran requesting the location of additional service records, and giving the veteran 60 days to submit any new evidence. Seventeen days later, the RO denied the veteran’s claim. Shortly after the RO sent that decision, the veteran responded to the RO’s request for information. The veteran did not file a Notice of Disagreement. Over the years, the veteran submitted additional requests to reopen his claim, and the RO continued to deny the claim. The RO finally awarded benefits in December 2005.
In an effort to obtain an earlier effective date for the award of benefits, the veteran argued that his 1985 letter in response to the RO’s request for information constituted new and material evidence that gave rise to a pending and unadjudicated claim. He also argued that there was clear and unmistakable error in the 1985 decision because the RO failed to obtain the identified service records. The Court held that if a claim is pending based on the submission of new and material evidence under 38 C.F.R. § 3.156(b), a subsequent final decision on the same issue terminates that pending claim. A dissenting judge argued that the regulation requires VA to consider new evidence submitted during the relevant period and determine whether it is new and material – and that the decision only becomes final when VA has considered the new evidence. Because the RO never obtained the service records identified in the veteran’s letter, the dissenting judge argued that the Court should remand the case to allow the Board to address the applicability of § 3.156(b). This case is being appealed to the Federal Circuit.