Giving VA additional evidence

[ozboi]

So after reading my decision letter again, I came upon the back of VA Form 4107

It states.....

 

"GIVING VA ADDITIONAL EVIDENCE"

"You can send us more evidence to support a claim whether or not you choose to appeal"

"NOTE: Please direct all new evidence to the address included on our decision notice letter.
You should not send evidence directly to the Board at this time.
You should only send evidence to the Board if you decide to complete an appeal and, then,
you should only send evidence to the Board after you receive written notice from the Board
that they received you appeal".

"If you have more evidence to support a claim, it is in your best interest to give us that evidence as soon as you can.
We will consider your evidence and let you know wether it changes our decision............"

So has anyone went this way instead of filing for a NOD?

If so please share your experience.....

I have new evidence to turn in, and I want to know what is the best way possible to do that (and keep the original claim date) 

[Berta]

I answered your question in a different post you made somewhere here yesterday.

You can upload the evidence to your ebenefits account or send it to :

Evidence intake center
PO Box 4444
Janesville WI 53547-4444
fax 844-5317818

[Berta]

You are reading the lower part of the form ( 4107)---

There is no way to get to the BVA without filing a NOD first, within the one year deadline...

Many have filed for a Reconsideration, with new evidence- and that type of claim can be searched for here.However, it does NOT stop the clock for the NOD deadline (one year after the decision), because they can deny the reconsideration request.

The 4107 form begins this way:

"After careful and compassionate consideration, a decision has been reached on your claim. If we were not able to grant some or all of the VA benefits you asked for, this form will explain what you can do if you disagree with our decision. If you do not agree with our decision, you may: Start an appeal by submitting a Notice of Disagreement. Give us evidence we do not already have that may lead us to change our decision. This form will tell you how to appeal and how to send us more evidence. You can do either one or both of these things. HOW CAN I APPEAL THE DECISION? How do I start my appeal? To begin your appeal, you must submit VA Form 21-0958, "Notice of Disagreement," if that form was provided to you in connection with our decision. If we denied more than one claim for a benefit (for example, if you claimed compensation for three disabilities and we denied two of them), please tell us in Part IV of VA Form 21-0958 each of the claims you are appealing. A filed VA Form 21-0958 is considered your Notice of Disagreement. If you did not receive VA Form 21-0958 in connection with our decision, then write us a letter telling us you disagree with our decision or enter your disagreement on VA Form 21-0958 in questions 11 or 12A. If you did not receive VA Form 21-0958 in connection with our decision, then either your statement or VA Form 21-0958 is considered your Notice of Disagreement. Send your Notice of Disagreement to the address included on our decision notice letter. How long do I have to start my appeal? You have one year to start an appeal of our decision. Your Notice of Disagreement must be postmarked (or received by us) within one year from the date of our letter denying you the benefit. In most cases, you cannot appeal a decision after this one-year period has ended. What happens if I do not start my appeal on time? If you do not start your appeal on time, our decision will become final. Once our decision is final, you cannot get the VA benefit we denied unless you either: Show that we were clearly wrong to deny the benefit or Send us new evidence that relates to the reason we denied your claim. What happens after VA receives my Notice of Disagreement? We will either grant your claim or send you a Statement of the Case. A Statement of the Case describes the facts, laws, regulations, and reasons that we used to make our decision. We will also send you a VA Form 9, "Appeal to Board of Veterans' Appeals," with the Statement of the Case. If you want to continue your appeal to the Board of Veterans' Appeals (Board) after receiving a Statement of the Case, you must complete and return the VA Form 9 within one year from the date of our letter denying you the benefit or within 60 days from the date that we mailed the Statement of the Case to you, whichever is later. If you decide to complete an appeal by filing a VA Form 9, you have the option to request a Board hearing. Hearings often increase wait time for a Board decision. It is not necessary for you to have a hearing for the Board to decide your appeal. It is your choice." etc etc ,more to the form... 

[broncovet]

Of course, Im not disputing what Berta said, but, yes, you can reopen due to New and Material Evidence under 38 CFR 3.156, whenever you submit "new and material evidence" under 3.156.  If you submit new evidence in the appeal period ( within 1 year after the VARO decision), you can see that it can afford you an earlier effective date, than if you wait until AFTER the appeal period.  

Read that regulation.  However, in practice, I dont think VA always complies.  In other words you submit new evidence, and VA simply ignores it, and NEVER reopens the claim.  However, if you appeal and, later down the road, you discover VA never reopened per your new evidence, then you can appeal the effective date, alleging VA failed to reopen, so that your claim is still pending.  Read about the pending claim doctrine.  

Essentially, the gist of the pending claim doctrine is that one a Veteran files a claim the VA does not have to adjuticate it, but, if they dont, when it finally does get adjuticated (assuming you dont die first), then you should get benefits backdated to when you applied.    There is a lawyer, John Fussel,  who write a rather fine article on the pending claim doctrine.  

I think the pending claim doctrine arose because of the "deemed denial" doctrine, which is another subject I wont get into now, except that it "flies in the face" of 38 CFR 3.103, which suggests a Veteran is entitled to a written decision on all claims.  

VA "weasels" on 3.103, because they always blame the backlog.  "Oh, 3.103?  Gee, yes, sorry we have not done a decision on your claim.  Yea, it has been a long time, 25 years, but wow, look at that backlog.  We are processing other Veterans claims now, but we expect to get to your claim, for sure, by year 2040, unless there is a change in regulation which allows us to delay it longer, of course."  

[broncovet]

If you want to "fix" VA's non compliance, that is, their failure to reopen under 3.156, many Vets use the "play dumb" technique.  Since VA thinks all Vets are idiots, it works rather well.  Here is how. 

Example.  You file in 2005, VA denies.  You submit new and material evidence within a year, also in 2005.  VA does their usual "nothing", on your claim.  

YOu file a new claim in 2015, for the same issue,  and, this time VA awards it, back to 2015.  You appeal the 2015 decision, appealing the effective date alleging that VA failed to reopen and that you should get a 2005 effective date.  You should win, however, you will have to have evidence back in 2005, that you had a current diagnois, nexus, and in service event, which, of course, would include your "new evidence" you submitted in 2005.    

This works because VA thinks you were just plain dumb and that you could have gotten an eed, and then, they are mad you appealed the effective date.    Or, the VA never bothered to read your reopen, which is also likely.  

Edited November 20, 2016 by broncovet

[broncovet]

I have a somewhat similar situation, but Im afraid the VA has gotten tipped off that I'm not all THAT dumb, espeically when I hired a lawyer, so they dont want to award benefits as they know that Im seeking them way back when Moby Dick was a minnow.  

If VA sends me a nice retro check, I dont care if they put in the comments, "This Veteran is an idiot."  In fact, I prefer it when my opponent underestimates me.  Remember, Goliath underestimated David.  

[FormerMember]

I think Broncovet is playing fast and loose with the term "reopen". In VA law, You only have one claim. It may be for different diseases or injuries, but it is still one and only one claim. If you file new evidence between the time you receive your denial and when you file your NOD, VA is indeed required to give you a de novo review of the denial by law. Since there is no such thing as a reconsideration, by law, if they fail to "reconsider" it and issue a new denial, the claim does remain pending by law until it  can be determined it has been answered and decided. This is how I went back to 1994 and got them to grant my claims. However, the correct procedure is to file the NOD with the new and material evidence, not ask for a reconsideration. If you do send in N&M E, you still have to protect your claim by filing the NOD. Since a substantive appeal is bifurcated into two parts (NOD and VAF 9), you have to comply completely and properly or the claim dies for lack of action one year from the initial denial. 

If you did not appeal in that one year window following the initial denial, you may "reopen" the claim at a later date but would be required to submit more new and material evidence to permit the reopening. Duplicative evidence already sent in will not suffice to reopen it. Claiming they failed to reconsider it following the new submission of evidence will not work either if you fail to file the NOD. The only thing you can ask VA to reconsider is a failed appeal at the Board of Veterans Appeals which must be accomplished within 120 days of the BVA decision.

P.S. Back in the "old days", we could file N&M E and get a new denial back in a month or two ( 1994). By 2000, the backlog was becoming endemic to the system and the danger of running out of time in that first year without a NOD became more prevalent. Strictly speaking, they are required to return a de novo decision if you submit the new evidence. In reality, they are overwhelmed and it befalls you to file the NOD to protect their delay in deciding it anew. 

Read 3.156(b) carefully to include all interpretations:

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

Please note the repeated emphasis on the word "appeal".

Edited November 22, 2016 by asknod
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