Beraud v. McDonald, 766 F.3d 1402 (Sept. 12, 2014)
38 C.F.R. § 3.156(b); PENDING CLAIM
Held: VA is required, under 38 C.F.R. § 3.156(b), to expressly determine whether evidence submitted during the one-year appeal period is new and material – and its failure to do so renders the underlying claim nonfinal, despite a subsequent final decision on the same issue. 766 F.3d at 1407. VA is not entitled to the presumption that the records were considered when there is no evidence that the records were even obtained. Id. at 1406-07.