2. Considering Additional Service Records Introduction This topic contains general information on considering additional service records after VA issues a decision on a claim including reconsidering additional service records service records that warrant reconsideration under service records that do not justify reconsideration under effective dates under , and procedures for rating activity review. Change Date June 25, 2015 a. Reconsidering Additional Service Records If VA receives or associates with the claims folder additional qualifying service records that existed and had not been associated with the claims folder when VA first decided a claim, VA will reconsider the claim under the provisions of . See M21-1, Part III, Subpart iv, 2.B.2.b for what is considered “qualifying service records.” Important: The qualifying service records discussed under this Topic are not to be analyzed under or . Reference: For more information on the effective date rule that applies when records received under result in favorable reconsideration, see M21-1, Part III, Subpart iv, 2.B.2.d. b. Service Records That Warrant Reconsideration under 38 CFR 3.156(c)(1) Qualifying service records for the purpose of are any service records forwarded to VA from the Department of Defense (DoD) or service departments, including records related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, and declassified records that could not have been obtained because they were classified when VA decided the claim. Exception: Records identified in M21-1, Part III, Subpart iv, 2.B.2.c are not qualifying records for the purpose of . c. Service Records That Do Not Justify under 38 The receipt of service records in the following two scenarios will not trigger reconsideration under the provisions of the service records did not exist when VA decided the claim, or the claimant failed to provide sufficient information to enable VA to
Sufficient to Reopen a Previously Denied Claim a record photocopied from the claims folder that was considered in the previously denied claim. a new medical nexus opinion incorporating an inaccurate history. See , 5 Vet. App. 458 (1993)for more information. written testimony from an eyewitness that is substantially identical to a statement already on file. a layperson’s assertion about the cause (but not the onset) of a disability, or medical evidence that reveals the existence of a disability when previous evidence already revealed that the disability existed. h. Benefit of the Doubt Under 38 USC 5107(b) The benefit of the doubt under cannot take the place of the standard for reopening claims. The standard for reopening claims, as stated in , requires only that new and material evidence be presented or secured. The weight of the evidence is not considered. Reference: For more information on the benefit-of-the-doubt rule, see , 6 Vet. App. 462 (1994). i. Presuming the Evidence to be Credible When determining whether new and material evidence has been submitted to justify reopening a claim, presume the new evidence to be credible. Note: Once a claim has been reopened, the presumption of the credibility of the evidence no longer applies, and the evidence must be weighed. Reference: For more information on credible evidence, see , 3 Vet. App. 510 (1992). j. Handling Cases in Which VA Has Requested New and Material Evidence The table below shows how to handle cases in which VA has requested new and material evidence. If … Then … the evidence submitted is new and material the development and/or rating activity will reopen the claim, complete any necessary development including a VA exam, and reconsider the claim on its merits based on all previously existing and
If … Then the RO … And the Veterans Service Representative (VSR) or RVSR … a decision has been affirmed by BVA does not have jurisdiction to review the claim for a CUE determination Rationale: The RO does not have jurisdiction to consider a claim of CUE in a decision that has been subsumed by a BVA decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that level is desired. the decision was not appealed, but a later reopened claim was followed by a BVA affirmance does not have jurisdiction to review the claim for a CUE determination Rationale: The General Counsel has concluded that the RO does not have jurisdiction to consider a CUE claim where BVA has reviewed the entire record of the claim following reopening, and denied the benefits previously denied in the unappealed decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that level is desired. Note: All SOCs for appeals in which the issue on appeal involves a prior unappealed RO decision, followed by a claim to reopen the claim that was decided by BVA, should contain a citation to . the decision was not appealed, and a subsequent BVA decision merely concludes that new and material evidence does have jurisdiction to review the claim for a CUE determination Rationale: The BVA decision does not bar a claim of CUE in the prior unappealed RO decision. The General Counsel has reviews the unappealed decision for CUE.