Bva - Cue In The Ro's 1994 Decision Not To Reopen The Claim - 09/27/12

[carlie]

http://www.va.gov/vetapp12/Files5/1233752.txt

Nonetheless, the Board finds CUE in the RO's 1994 decision not to reopen the claim.

At the time of the 1994 rating decision, the Veteran's claim had been previously denied because the medical evidence did not show a diagnosis of a psychiatric disorder within the presumptive time frame or otherwise linked to service.

When the 1994 rating decision was adjudicated, the evidence showed a diagnosis of schizophrenia.

Although this evidence was considered new, the RO concluded the evidence was not material in that the medical evidence did not link the Veteran's schizophrenia to his military service and such diagnosis was not within the presumptive time frame.

However, the Board finds that the new evidence showing a diagnosis of schizophrenia bore directly and substantially upon the matter under consideration at that time, and as such, should have been considered material.

A finding of new and material evidence would have been sufficient to reopen the Veteran's claim for further development.

Indeed, the U.S. Court of Appeals for the Federal Circuit interpreted the language in 38 C.F.R. § 3.156(a) to mean that new evidence could be material even if it was not facially sufficient to establish entitlement to service connection because the purpose of the definition was to ensure that the claim was decided on a complete record so the outcome of the claim would comport with Congress' intent of systemic fairness. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

In light of the foregoing, while the Board finds that the correct facts were before the RO at the time of the 1994 adjudication, it is clear that if the RO had appropriately applied the new and material evidence regulations, it would have manifestly changed the outcome of the decision.

Thus, based on the following, the evidence supports a finding that the 1994 rating determination was clearly and unmistakable erroneous in declining to reopen the service connection claim for a psychiatric disability.