Cuevas v. Principi — Presumed credible lay testimony can be new and material evidence to reopen a final claim

The veteran sought to reopen a previously denied claim for service connection for hearing loss. The Board concluded that he had not submitted new and material evidence, but the Court vacated that decision and held that the veteran’s sworn testimony about in-service noise exposure, symptoms, and treatment was new and material because it added information not previously before the Board and, if believed, could change the outcome.

The Court emphasized that credibility is presumed when determining whether evidence is new and material. It also noted that the record was sparse and that the Board had not adequately explained its finding or addressed the testimony’s credibility. Because service medical records were missing, the Court held that VA’s duty to assist was heightened and included searching for alternate records, explaining to the veteran what evidence was needed, and providing a medical examination and opinion regarding current hearing loss and its relationship to service.

When a claimant seeks to reopen a final VA claim, sworn lay testimony must be presumed credible for reopening purposes and may be new and material evidence if it is noncumulative, relevant, probative, and reasonably capable of changing the outcome.

Do not dismiss sworn testimony at the reopening stage; if it adds meaningful, potentially outcome-changing facts, the Board must reopen and then develop the claim further.

Cuevas is an early reopening case that ties together the presumption of credibility, the definition of new and material evidence, and VA’s duty to assist in fire-related or otherwise incomplete-record cases. It is especially useful when a veteran’s hearing testimony is the main evidence supporting reopening.

Improperly treating sworn testimony as insufficient to reopen a claim without applying the presumption of credibility.

A veteran’s prior service-connection claim for a noise-related disability was finally denied, but later the veteran testifies under oath that the disability began in service and that treatment occurred at a military hospital not reflected in the record. The Board must presume that testimony credible for reopening and decide whether it is new and material.

Use Cuevas to argue that the Board must reopen when a veteran’s hearing testimony supplies new facts relevant to nexus or in-service incurrence, especially where service records are missing and alternate-source development has not been completed.

Manio v. Derwinski, Colvin v. Derwinski, Justus v. Principi, Moore v. Derwinski, Rabideau v. Derwinski, Douglas v. Derwinski, Fletcher v. Derwinski, Hatlestad v. Derwinski, Smith v. Derwinski