## Facts

- Lewis Hodge, a World War II veteran, sought service-connected disability benefits for arthritis of the left knee and hip.
- He served on active duty from February 1941 to October 1943.
- At pre-induction, he reported childhood rheumatism in the left knee and hip, but the entrance exam recorded no musculo-skeletal defects.
- In October 1942, he was hospitalized and diagnosed with chronic, moderately severe arthritis of the left knee, with cause undetermined.
- VA denied service connection in 1962.
- In 1992, Hodge sought to reopen the previously denied claim and submitted additional medical evidence.
- The Board of Veterans’ Appeals denied reopening, finding the new evidence not “material” because it did not create a “reasonable possibility” of changing the outcome.
- The Court of Veterans Appeals affirmed using the same “reasonable possibility” test.
- Hodge appealed to the Federal Circuit, challenging the legal standard used to determine whether his claim should be reopened.

## Issues

1. Whether the Veterans Court erred by applying a judicially created “reasonable possibility of changing the outcome” materiality test instead of the regulatory definition of “new and material evidence” in 38 C.F.R. § 3.156(a) when applying 38 U.S.C. § 5108.
2. Whether courts must defer to the Secretary’s reasonable regulatory interpretation of the undefined statutory phrase “new and material evidence.”

## Decision

- The Federal Circuit vacated the Veterans Court’s decision and remanded.
- The court held that the Veterans Court improperly displaced the controlling regulatory definition in 38 C.F.R. § 3.156(a) with the Colvin “reasonable possibility” test.
- The court directed a new determination of materiality under § 3.156(a), rather than under the judicially created social-security-derived standard.

## Legal Principles

- When Congress leaves a statutory term undefined, courts must defer to an agency’s reasonable regulatory interpretation of that term.
- For reopening a finally denied veterans benefits claim under 38 U.S.C. § 5108, the definition of “new and material evidence” in 38 C.F.R. § 3.156(a) governs.
- Under § 3.156(a), evidence is “material” if, alone or with prior evidence, it is so significant that it must be considered to fairly decide the merits; reopening does not require a prediction that the new evidence will likely change the ultimate outcome.
- The reopening inquiry and the merits adjudication are distinct steps; a reopening standard that effectively requires merits-level persuasion improperly raises the veteran’s burden.

## Conclusion

The Federal Circuit required the Veterans Court to apply the VA’s regulatory definition of “new and material evidence” in 38 C.F.R. § 3.156(a), rejecting the Colvin “reasonable possibility of changing the outcome” gloss as inconsistent with the governing statutory and regulatory scheme, and remanded for a new materiality determination under the proper standard.


Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)