Budnik v. Derwinski — New and material evidence requires reopening and merits review

Andrew Budnik sought service connection for bossing of the bone over his left forehead, alleging that it resulted from a blow to the head during enemy bombardment in service. The Board had previously denied the claim in 1972, finding no in-service documentation and first post-service documentation in 1966. In support of reopening, Budnik submitted six lay statements from fellow servicemen and a letter from Dr. Harold D. Stephens. Dr. Stephens stated that he first knew Budnik in 1946, observed a slightly enlarged bony prominence over the left eyebrow, and believed it was reasonable that the condition had resulted from the in-service injury and progressed over time. The Board acknowledged the evidence was new but concluded it did not establish a new factual basis for service connection.

The Court applied the two-step reopening framework from Manio and reviewed the new-and-material determination de novo. It held that Dr. Stephens’ statement was new and material because he was both a percipient witness close in time to service and a medical doctor, and his opinion was significant enough that it had to be considered to fairly decide the merits. Because the Board appeared to have considered only the new evidence rather than reopening and reviewing the claim on the full record, remand was required. The Court also stated that the Board provided no reasons or bases for rejecting Dr. Stephens’ medical opinion and could not substitute its own unsubstantiated medical conclusions. The Court rejected the separate duty-to-assist argument because the record showed the VA facility reported no records existed.

Evidence is new and material when it is neither cumulative nor redundant and is significant enough that it must be considered to fairly decide the merits; once such evidence is submitted, VA must reopen the claim and adjudicate it on the basis of all the evidence, and the Board must provide adequate reasons or bases if it rejects favorable medical evidence.

A firsthand medical nexus statement can be enough to reopen a final claim, even if the Board views it skeptically. After reopening, the Board must do a full merits review and explain any rejection of favorable medical evidence with adequate reasons or bases.

Budnik is a useful reopening case for proving that the threshold for new and material evidence is distinct from the ultimate merits. It also highlights the Board’s duty to explain why it rejects favorable medical evidence and warns against impermissible medical judgment by adjudicators.

Treating the reopening inquiry as a merits denial without fully applying the new-and-material standard and without reviewing the claim on all evidence of record.

A veteran submits a post-denial letter from a treating clinician who personally observed the condition soon after service and opines it likely began in service. VA cannot simply say the evidence is not enough on the merits; it must decide whether the evidence is new and material and, if so, reopen the claim.

Use Budnik to argue that competent firsthand medical evidence may be sufficient to reopen a final denial and that the Board must then reconsider the claim on the complete record. It is also helpful when challenging a Board decision that dismisses favorable medical evidence without explanation.

Manio v. Derwinski, Colvin v. Derwinski, Caldwell v. Derwinski, Murphy v. Derwinski, Fletcher v. Derwinski, Tirpak v. Derwinski