Gobber v. Derwinski
1992 WL 119006, 2 Vet. App. 470, 1992 U.S. Vet. App. LEXIS 133 (1992)
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Rule of Law:
When a veteran submits new evidence that is relevant and, when combined with their statement of its origin, could reasonably change the outcome of a denied claim, the Department of Veterans Affairs has a heightened "duty to assist" in corroborating that evidence, especially when the records are governmental and their reliability depends on their source.
Facts:
- Appellant served in the Navy from 1954 to 1977, frequently working near jets on aircraft carrier flight lines and at Naval air stations, exposing him to high levels of noise.
- In 1977, Appellant filed a claim with the Veterans' Administration (VA) for bilateral high frequency hearing loss (HFHL).
- In 1983, Appellant reopened his claim, and a VA audiogram showed some HFHL.
- On November 20, 1989, Appellant attempted to reopen his claim again by submitting an undated, unsigned audiogram.
- Appellant stated that this audiogram was conducted in 1976 and was used to reassign him from working on jet engines to working in supply.
- Appellant further explained that the audiogram was part of his service medical record, was administered by the U.S. Navy during his tour of duty, and he photocopied it before discharge from active duty.
Procedural Posture:
- On October 20, 1977, the VA Regional Office (VARO) denied service connection for Appellant's bilateral high frequency hearing loss (HFHL) based on a VA examination.
- On June 15, 1978, the VARO confirmed its denial of service connection.
- On February 4, 1983, after Appellant reopened his claim, the VARO again denied service connection, finding that although a new audiogram showed HFHL, it appeared more than five years after discharge and was insufficient to establish service connection; this decision was not appealed.
- On March 13, 1990, the VARO refused to reopen Appellant's claim, stating the undated and unsigned audiogram he submitted was not material.
- On April 13, 1990, Appellant filed a Notice of Disagreement with the VARO's refusal to reopen.
- On March 28, 1991, the Board of Veterans' Appeals (BVA) affirmed the denial of service connection, concluding that the submitted audiogram was "not determinative of the issue."
- Appellant filed a timely appeal to the United States Court of Veterans Appeals.
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Issue:
Does an undated and unsigned audiogram, when accompanied by a veteran's statement that it originated from his service medical records and was created in 1976, constitute "new and material" evidence sufficient to warrant reopening a previously denied claim for service connection and trigger the Department of Veterans Affairs' "duty to assist" in corroborating the evidence?
Opinions:
Majority - Holdaway, Associate Judge
Yes, an undated and unsigned audiogram, when coupled with a veteran’s credible statement about its origin from his service medical records and its 1976 date, does constitute sufficient "new and material" evidence to reopen a claim and trigger the VA's "duty to assist" in corroboration. The court found that while the audiogram alone lacked probativeness due to missing authentication, a veteran's testimony about its source and date, especially when it purports to come from official service records, cannot be ignored. Citing Robie v. Derwinski and Colvin v. Derwinski, the court reiterated the "new and material" standard: evidence that is not merely cumulative, is relevant and probative, and has a reasonable possibility of changing the outcome. Because the evidence, if believed, could lead to a compensable claim, the VA's "duty to assist" under 38 U.S.C. § 5107 requires them to search for corroborating records. This duty is particularly strong when the potential records are under the government's control and their reliability depends on their source. The court clarified that while the VA must assist, it is not required to engage in a "fishing expedition" for unspecified information; rather, its duty is limited to searching for specifically identified documents that would be facially relevant and material. Therefore, the Secretary’s motion for summary affirmance was denied, and the case was remanded to the Board with directions to assist the appellant in locating the records.
Analysis:
This case clarifies the standard for "new and material" evidence in veterans' claims, emphasizing that a veteran's own testimony can lend sufficient weight to otherwise unauthenticated documents to meet the threshold for reopening. It reinforces the broad scope of the VA's "duty to assist" under 38 U.S.C. § 5107, particularly when the government controls potentially corroborating evidence. The decision underscores that the duty requires active assistance in locating specific, facially relevant documents, striking a balance between protecting veterans' rights and preventing undue burdens on the VA. This ruling impacts future cases by establishing that a veteran's personal account can be crucial in initiating the VA's search for official records, even if the submitted evidence initially appears incomplete.
