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Board Erred in Determination of No New and Material Evidence for Inguinal Hernia Claim

Board Erred in Determination of No New and Material Evidence for Inguinal Hernia Claim

Summary of the Case

The Veteran served in the United States Army from November 1959 to November 1962. In June 1962, he was injured in a parachuting accident and underwent surgery for a right inguinal hernia for which he is now service connected. The Veteran stated that during service, the physician who treated him after the accident also found a hernia on his left side, but the Veteran declined having surgery on that side.

The Veteran filed a claim for “internal injury” in 2001, and he was then denied service connection for left inguinal hernia by the Regional Office (RO) in September 2002. The Veteran did not appeal this decision, and the decision became final.

In May 2005, the Veteran filed again for service connection for left inguinal hernia. The RO found that the Veteran did not submit new and material evidence to reopen his claim for service connection, and denied the reopening of the claim in January 2006. The Veteran appealed to the Board of Veterans’ Appeals.

In March 2017, the Veteran had a hearing before a member of the Board of Veterans’ Appeals in which he described the parachuting accident in service. The Board subsequently denied his claim to reopen his claim for service connection for left inguinal hernia in May 2017, stating that the evidence that the Veteran submitted did not constitute new and material evidence.

 

CCK Argues For Veteran, Court Agrees

CCK appealed the Veteran’s May 2017 Board decision denying the reopening of his claim for service connection for left inguinal hernia to the Court of Appeals for Veterans Claims. CCK argued that the Board erred when it found that the lay statements the Veteran submitted did not constitute new and material evidence to reopen his claim. CCK also argued that the Board hearing officer failed to discuss the issue of new and material evidence and suggest that the Veteran submit that evidence.

The Court agreed with CCK that the Board hearing officer failed to address the issue of new and material evidence, and deprived the Veteran of the opportunity to submit evidence that was potentially relevant. The Court vacated the Board’s decision regarding reopening of the Veteran’s claim for service connection for left inguinal hernia, and remanded the issue back to the Board in order to afford the Veteran the opportunity to obtain additional evidence.

 

Click here to read the Court’s decision.

Category: Court Wins

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