Beraud v. McDonald, No. 13-7125 (Fed. Cir. 2014)
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Beraud served on active duty in the U.S. Navy, 1974-1977, and in the reserves until 988. In 1985, Beraud filed a claim with a VA Regional Office for a headache disorder, allegedly caused by trauma suffered while on duty. Although Beraud did not appeal the RO’s denial of his claim, he sent a letter, indicating the location of additional service medical records. The RO never responded. The RO reopened the claim, but denied it on the merits in 1990, finding that Beraud did not incur the headache disorder, or aggravation thereof, during service. The RO did not refer to Beraud’s 1985 letter, nor did it mention the medical records that were the subject of the letter. Beraud did not appeal. The RO denied two later requests to reopen, finding that Beraud had not submitted new and material evidence. In 2004, Beraud submitted an informal claim for disability compensation for the same headache disorder. This time, the RO granted Beraud service connection and assigned a 50 percent disability rating, effective 2004. In 2010, the Board denied Beraud’s appeal, finding that the decisions on his 1985, 1990, 1992, and 2002 claims were final, so that an effective date prior to 2004 could not be granted. Beraud argued that his 1985 letter constituted new evidence, giving rise to a pending, unadjudicated claim. The Veterans Court affirmed. The Federal Circuit reversed. Because the VA failed to determine whether evidence Beraud timely submitted in 1985 claim was new and material under 38 C.F.R. 3.156(b), that claim remained pending, despite the subsequent final decision.
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