Akins v. Derwinski

In Akins v. Derwinski, 1 Vet.App. 228 (1991), the Veterans Administration Regional Office ("VARO") failed to properly apply the presumptions of soundness upon enlistment and of service-connection for aggravated conditions when denying the veteran's claim for benefits. The Court of Veterans Appeals held that those presumptions provided the evidentiary foundation upon which the veteran's claim stood, and, unless rebutted by the Government, entitled the veteran to a decision in his favor. Failure to have given the veteran the benefit of the presumptions was clear and unmistakable error; the initial decision denying benefits was reversed and remanded. In the course of its opinion, the Court of Veterans Appeals noted that "the factual predicate demonstrated by the presumptions have an important evidentiary value and, to that extent, are the functional equivalent of evidence." Id. at 230. Hence, the failure to apply the presumptions provided a basis for reopening the claim. The court then cited a Court of Veterans Appeals case, indicating that it involved "new and material evidence," as well as 38 C.F.R. 3.156(a) (defining "new and material"). Id. But the Akins decision did not involve the question of reopening a case based on new and material evidence. As the court stated, "on appeal ... appellant contended that the denial of his original claim ... was clear and unmistakable error." Id. at 228.