Veteranclaims’s Blog

November 13, 2021

§3.156(b); Mitchell; Lang; Bond; Beraud

Filed under: Uncategorized — Tags: — veteranclaims @ 7:00 pm

§3.156(b) purpose is to prevent VA from ignoring new and material evidence received before a claim’s appeal period expires; it accomplishes this by keeping that claim pending until VA directly addresses such evidence. see Mitchell, 27 Vet.App. at 439.

 §3.156(b) requires VA to assess any evidence submitted during the relevant appeal period, even if no appeal is filed, and determine whether it constitutes new and material evidence relating to the claim. Bond v. Shinseki, 659 F.3d 1362,1367 (Fed.Cir.2011).

Until VA makes a “determination that is directly responsive to the new submission, ”the pending claim is not final. Beraud v. McDonald,766 F.3d 1402,1407 (Fed.Cir.2014); see Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed.Cir. 2020) (“A claim …remains open until the VA determines whether post-decision evidence received within the one-year appeal period is ‘new and material.’”); Mitchell v. McDonald, 27 Vet.App. 431, 436 (2015).

So when a claimant submits evidence within the 1-year appeal period of an RO decision, the RO must determine whether the evidence is new and material. Beraud, 766 F.3d at 1406; Bond, 659 F.3d at 1369.

If the evidence is new and material, the RO will readjudicate the claim as if the claimant had submitted the evidence along with the original evidence. See,e.g., Bond, 659 F.3d at 1367-69. Until the RO provides a determination “directly responsive to the new submission,” the claim remains pending. Beraud, 766 F.3d at 1407

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