“The claim for service connection for [your disability here] remains denied because the evidence submitted is not new and material.” Have you ever read those words when looking at your rating decision from the VA? New and material. The evidence you submitted may very well be new evidence, and it may be material to you, so what does the VA mean when they talk about new and material evidence?
In the realm of VA law, new and material evidence is defined as existing evidence not previously submitted to the agency decision makers that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The definition consists of two different elements here:
- New: Evidence that has never been submitted to the agency decision makers. This new evidence could be new medical records, buddy statements, or service records. (Note: Service records not previously associated with the claim open up a new realm of effective dates.) When thinking about what new evidence is, ask yourself, “is this cumulative or redundant of the evidence that was in the record before?” If you find that your answer is yes, you will likely find yourself with the answer quoted above.
- Material: Material evidence means evidence that by itself or when considered with previous evidence of the record relates to an unestablished fact necessary to substantiate the claim. In other words, does this evidence tend to make it more likely that my condition is related to service?
Now that we’ve gone through what the VA defines as new and material, how can it help you? Unlike opening a brand new claim, which can be done irrespective of past decisions or evidence of the record, new and material evidence allows you to reopen a previously decided claim and/or possibly get an earlier effective date.
Reopening a Claim:
When a veteran files a claim for benefits on a disability which the VA has already denied, and that decision has become final, it is considered a reopened claim. For a decision to be considered final, the time for appeal must have run. An example of such a finalized decision would be a denial of a claim by the Regional Office (RO) whose one year time period for appeal has passed and no appeal has been filed. For this example, we will assume the veteran applied for benefits for PTSD but was denied on the basis that he did not have a current diagnosis at the time of his application. If the veteran is later diagnosed with PTSD and submits evidence of this diagnosis to the RO, he will be able to reopen his claim for service connection for PTSD based on new and material evidence.
How can new and material evidence get you an earlier effective date? There are two ways to establish entitlement to an earlier effective date with new evidence:
- Service Records: According to VA regulations, “at any time after the VA issues a decision on a claim, if the VA receives relevant official service department records that existed and had not been previously associated with the claims file when the VA first decided the claim, the VA will reconsider the claim.” This means if the VA previously denied your claim for a back injury 20 or even 30 years ago, and now finds service records that were not previously considered in connection with the claim, your effective date can potentially go all the way back.For example, when a veteran files a claim for degenerative disk disease (DDD) brought on by a fall in service on January 1, 1990, and is denied because there is no evidence of an in-service injury or occurrence. In 2017, the veteran finds official service medical records showing he took a tumble in service and submits them to the VA to reopen his claim for DDD. The VA is required to consider these records in connection with that January 1, 1990, claim. As you can see, this opens up the potential for 27 years of unpaid benefits.
- New and Material Evidence submitted prior to the expiration of the appeal period. “New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” When you get rid of the VA legal jargon, this means that from the date of issuance of an RD the veteran has one year to submit new and material evidence relating to his claim. If a veteran files the new evidence within that one year period, it must be considered in relation to the original filing date for the then pending matter.
New and material evidence can involve a number of different and complex issues, but can also be a veteran’s strongest ally in receiving the benefits that are due to them.