155 F.3d 1356 (Fed. Cir. 1998), 98-7017, Hodge v. West

Docket Nº98-7017.
Citation155 F.3d 1356
Party NameLewis HODGE, Claimant-Appellant, v. Togo D. WEST, Jr., Secretary of Veterans Affairs, Respondent-Appellee.
Case DateSeptember 16, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1356

155 F.3d 1356 (Fed. Cir. 1998)

Lewis HODGE, Claimant-Appellant,

v.

Togo D. WEST, Jr., Secretary of Veterans Affairs, Respondent-Appellee.

No. 98-7017.

United States Court of Appeals, Federal Circuit

September 16, 1998

Page 1357

Kenneth M. Carpenter, Carpenter, Chartered, Topeka, Kansas, argued for claimant-appellant.

Steven J. Abelson, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel, and Nicole Sideris, Department of Veterans Affairs, Washington, DC.

Before MAYER, Chief Judge, MICHEL, and RADER, Circuit Judges.

MICHEL, Circuit Judge.

In this appeal, we are asked to examine the legal test adopted from social security benefits case law and applied by the United States Court of Veterans Appeals in reviewing determinations as to whether proffered evidence is sufficiently "new and material" such that a veteran's claim for service-connected disability benefits must be reopened. We must ascertain whether that legal test is consistent with the controlling statutory and regulatory schemes set in place by Congress and the Secretary of Veterans Affairs (the "Secretary"), respectively, and particularly the express definition of "new and material evidence" set forth in the regulations. See 38 C.F.R. § 3.156(a) (1994). Because we conclude that the Court of Veterans Appeals failed to defer, as required, to a reasonable regulation promulgated by the Secretary, and because we discern that the Court of Veterans Appeals's legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened, we vacate the court's decision and remand for further proceedings consistent with the statute, the regulation, and this opinion, including a determination under the Secretary's regulatory definition rather than the social security case law definition as to whether the admittedly new evidence submitted by Hodge is "material."

Page 1358

BACKGROUND

Lewis Hodge appeals from a decision of the Court of Veterans Appeals, Hodge v. Gober, No. 96-330 (Memorandum Decision Aug. 21, 1997) (hereinafter "Hodge Court Decision"), which became final when the court denied a motion for reconsideration, see Hodge v. Gober, No. 96-330 (Judgment Oct. 14, 1997). The court affirmed a decision by the Board of Veterans' Appeals (the "Board") declining to reopen Hodge's claim for service connection for arthritis of the left knee and hip. See In re Hodge, No. 94-01866 (Jan. 19, 1996) (hereinafter "Hodge Board Decision"). Both the Board and the Court of Veterans Appeals held that the "new" evidence Hodge submitted in support of his request to reopen his claim for service connection was not "material."

The facts as set forth by the Court of Veterans Appeals are, briefly, as follows. Hodge was in active military service from February 1941 to October 1943. During his medical examination prior to entry on duty, Hodge admitted that he had rheumatism in his left knee and hip when he was nine years old; his entrance examination, however, noted no musculo-skeletal defects. On October 24, 1942, he was admitted to a veterans hospital in Arizona and diagnosed with chronic, moderately severe arthritis of the left knee joint, cause undetermined. Hodge also complained at that time of pain in his left hip, but the examination revealed no injury or pathology. Hodge's September 19, 1943, service medical record includes a diagnosis of "traumatic chronic" arthritis of the left hip as well as knee radiation pain.

Hodge filed a claim for service connection in January 1962. At that time, a medical evaluation of his hip and knee was negative. The regional office in Waco, Texas, therefore denied service connection on April 2, 1962, and Hodge did not appeal from that decision. He filed a new claim for service connection in February 1973, and that claim was also denied because his medical evaluation was again negative.

In May 1975, a private physician diagnosed Hodge with arthritis of the left knee and hip, but noted that the diagnosis was made without x-rays or other laboratory tests. Hodge submitted this report to the regional office, which issued a confirmed rating decision denying service connection. In September 1976, Hodge was hospitalized after complaining of shortness of breath and pain in his knees. X-rays at that time revealed soft tissue swelling about each knee, and Hodge was diagnosed with chronic synovitis, or inflammation of the membrane contained in the knee joint cavities. A second private physician, Dr. H.W. Thomas, issued a private medical report diagnosing Hodge with "pain in joints[,] particularly knee joint," but noting that "no definite diagnosis had been made" regarding the etiology of that pain.

In September 1992, Hodge filed to reopen his claim for service connection for arthritis of the left knee and hip. In support of this filing, Hodge provided his sworn testimony at a hearing in January 1993, a letter from Dr. Thomas stating that Hodge was "disabled due to Arthritis Disease" of his knees, dated January 13, 1993, and various medical records developed since 1973. The hearing officer concluded that the evidence submitted was not "new and material" and therefore refused to reopen the claim. Hodge appealed to the Board, which considered all evidence submitted since its decision in 1973, including Hodge's testimony, the letter from Dr. Thomas, and the May 1975 diagnosis. The Board made the following conclusions with respect to Hodge's claim for service connection for his left hip:

Having reviewed the evidence in its entirety, it is concluded that while the evidence is new, in the sense that it has not been previously considered; and is not cumulative of other evidence of record, the evidence is not material, as it is not relevant to and probative of the issue at hand. It does not tend to show that a left hip disorder began in service, or that arthritis of the hip developed within a year following discharge from service. Consequently, the evidence received since 1973, while not cumulative or duplicative of other evidence in the file, does not create a reasonable

Page 1359

possibility, when viewed in the context of all the evidence in the claims file, that the outcome of the case would be changed. Therefore, the claim cannot be reopened.

Hodge Board Decision, slip op. at 5 (emphasis added). The Board similarly concluded that the testimony and letter, with respect to Hodge's claim for a knee injury, did "not create a reasonable possibility, when viewed in the context of all the evidence in the claims file, that the outcome of the case would be changed." Id. at 6. The Board therefore denied Hodge's request to reopen his claim.

Hodge appealed the Board's decision to the Court of Veterans Appeals, which affirmed the decision of the Board. The court first explained:

When a claimant seeks to reopen a previously and finally denied claim, the Board is required to conduct a two-step analysis to determine whether new and material evidence has been presented. First, it must be determined if the evidence presented since the last final disallowance of the claim is "new and material." ... Evidence is "new and material" if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and, if it is "new" and "probative," (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record.

Hodge Court Decision, slip op. at 5 (emphasis added) (citations omitted). The court then held that the Board's conclusion, that Hodge's "new" evidence was not sufficiently "material" in light of this test, was well supported by the evidence. See id. at 6.

Hodge filed a timely appeal with this court, in accordance with 38 U.S.C. § 7292. We accepted the case for submission after oral argument on July 2, 1998. Because this appeal presents, not a factual dispute, but a purely legal question--the proper interpretation of a regulation in light of its underlying statute--we have jurisdiction to consider it. See 38 U.S.C. § 7292(d) (1994) (Federal Circuit may review questions of law, but not challenges to factual determinations or to laws or regulations as applied to particular facts); cf. Jones v. West, 136 F.3d 1296, 1298-99 (Fed.Cir.1998) (Federal Circuit has jurisdiction over questions of statutory interpretation).

ANALYSIS

I.

Section 5108 of title 38 of the United States Code provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The same term, "new and material evidence," also appears throughout the Department of Veterans Affairs's (the "DVA's") regulations. In 1990, recognizing that the term "new and material evidence" had been used for years without a formal definition, the DVA proposed amending the regulations to incorporate a specific definition. See Adjudication; Pensions, Compensation, Dependency: New and Material Evidence; Standard Definition, 55 Fed.Reg. 19088 (1990) (to be codified at 38 C.F.R. § 3.156) (proposed May 8, 1990) (hereinafter "Proposed Definition"). The amendment was adopted after a notice and comment period, and became effective on January 22, 1991. See New and Material Evidence, 55 Fed.Reg. 52274 (1990) (hereinafter "Final Definition"). Thus, the regulation now provides the following:

New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor...

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406 practice notes
  • VA Compensation and Pension Regulation Rewrite Project
    • United States
    • Federal Register November 27, 2013
    • November 27, 2013
    ...(1991) (``New evidence is not that which is merely cumulative of other evidence on the record.'') (overruled in part by Hodge v. West, 155 F.3d 1356 (Fed. Cir. In Anglin, the Federal Circuit affirmed the holding of the CAVC that the appellant's cumulative evidence was not new evidence. 203 ......
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    ...that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." 155 F.3d 1356, 1363 (Fed. Cir. 1998) (citing Colvin v. Derwinski, 1 Vet App. 171, 174 (1991)) (emphasis added). We concluded that an outcome dete......
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    ..."in the context of veterans' benefits," including in the development of all necessary evidence. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); see 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c). The veterans' benefits system is "uniquely pro-clai......
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    ...to "determine all potential claims raised by the evidence, applying all relevant laws and regulations") (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)); Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009) (finding that a claim for PTSD "cannot be a claim limited only ......
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404 cases
  • 969 F.3d 1333 (Fed. Cir. 2020), 2016-1929, Kisor v. Wilkie
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • August 12, 2020
    ...that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." 155 F.3d 1356, 1363 (Fed. Cir. 1998) (citing Colvin v. Derwinski, 1 Vet App. 171, 174 (1991)) (emphasis added). We concluded that an outcome dete......
  • Euzebio v. McDonough, 030321 FEDFED, 2020-1072
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Federal Circuit
    • March 3, 2021
    ..."in the context of veterans' benefits," including in the development of all necessary evidence. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); see 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c). The veterans' benefits system is "uniquely pro-clai......
  • Evans v. McDonald, 120214 USCAVC, 11-2917
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 2, 2014
    ...with ensuring that veterans who have been denied benefits in error be given the right to have their claims reexamined. Hodge v. West, 155 F.3d 1356, 1364 (Fed. Cir. 1998) (noting that the veterans benefits system is "so uniquely proclaimant [that] the importance of systemic fairness an......
  • Cogburn v. Shinseki, 121310 USCAVC, 08-1561
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 13, 2010
    ...a duty to sympathetically read a veteran's pleadings. "[I]n order to develop a claim 'to its optimum' as mandated by Hodge [v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998), ] . . . VA must determine all potential claims reasonably raised by the evidence, applying all relevant laws and re......
  • Request a trial to view additional results
1 books & journal articles
1 provisions
  • VA Compensation and Pension Regulation Rewrite Project
    • United States
    • Federal Register November 27, 2013
    • November 27, 2013
    ...(1991) (``New evidence is not that which is merely cumulative of other evidence on the record.'') (overruled in part by Hodge v. West, 155 F.3d 1356 (Fed. Cir. In Anglin, the Federal Circuit affirmed the holding of the CAVC that the appellant's cumulative evidence was not new evidence. 203 ......