Before Mayer, Chief Judge, Michel, and Rader, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge.
Appealed from: United States Court of Veterans Appeals
Judge John J. Farley, III
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."
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 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, ...