Rules For Adding Evidence

[Guest jangrin]

Once your claim is rated, and the vet either accepts, asks for a reconsideration, NOD, appeal..and you send in your letter stating you do not agree with the decision, can you continue to send in more records and information until the NOD or appeal is decided, or is there a cut off time on adding the new evidence?

I mean, once you send in your "additional" evidence, can you continue to send in evidence? We have been waiting for C-file for 6 weeks ( not counting the request for SMR's and Medicalrecords back in 2006)never recieved. How can a veteran supply evidence in a timely manner when the vet can't even get a copy of his records so he can look at what the VA is using to determine his claim?

Jangrin

[Vike17]

Jangrin,

"Once your claim is rated, and the vet either accepts, asks for a reconsideration, NOD, appeal..and you send in your letter stating you do not agree with the decision, can you continue to send in more records and information until the NOD or appeal is decided, or is there a cut off time on adding the new evidence?"

A claimant can submit evidence right up until the appeal is decided i.e. either a rating decision granting the benefits sought or a Statment of the Case (SOC) is issued. The only time there is a time limit in sending additional evidence is when the claimant submits Form 9 and the claim has been docketed. Once this is done, I believe the claimant has 90 days after that to submit any additional evidence before the BVA will noty accept any more. Let me double check this though as has been a long time since I had to take a claim to the BVA.

Vike 17

[Vike17]

Jangrin,

I found the reference to the 90 days I referred to in my first post;

"§19.37 Consideration of additional evidence received by the agency of original jurisdiction after an appeal has been initiated.

(a) Evidence received prior to transfer of records to Board of Veterans’ Appeals. Evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans’ Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition. If the Statement of the Case and any prior Supplemental Statements of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished to the appellant and his or her representative as provided in §19.31 of this part, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue, or issues, on appeal.

(B) Evidence received after transfer of records to the Board of Veterans’ Appeals. Additional evidence received by the agency of original jurisdiction after the records have been transferred to the Board of Veterans’ Appeals for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. (Authority: 38 U.S.C. 7105(d)(1))

§20.800 Rule 800. Submission of additional evidence after initiation of appeal.

Subject to the limitations set forth in Rule 1304 (§20.1304 of this part), an appellant may submit additional evidence, or information as to the availability of additional evidence, after initiating an appeal. (Authority: 38 U.S.C. 7105(d)(1))

§20.1304 Rule 1304. Request for change in representation, request for personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals.

(a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans’ Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence must be submitted directly to the Board and not to the agency of original jurisdiction. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

(B) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence.

(1) General rule. Subject to the exception in paragraph (B)(2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans’ Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on the motion, action will be taken as follows:

(i) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board’s action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal hearing granted as a result of a request so referred or any additional evidence so referred may be treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board’s decision, or testimony presented at a hearing resulting from a request for a hearing so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the effective date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request or additional evidence was received.

(ii) Good cause shown. If good cause is shown, the request for a change in representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

(2) If the Board obtains evidence or considers law not considered by the agency of original jurisdiction. The motion described in paragraph (B)(1) of this section is not required to submit evidence in response to the notice described in paragraph (a) or (B) of Rule 903 (paragraph (a) or (B) of §20.903 of this part).

© Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a §20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under §19.37(B) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.

(d) Simultaneously contested claims. In simultaneously contested claims, if pertinent evidence which directly affects payment, or potential payment, of the benefit sought is submitted by any claimant and is accepted by the Board under the provisions of this section, the substance of such evidence will be mailed to each of the other claimants who will then have 60 days from the date of mailing of notice of the new evidence within which to comment upon it and/or submit additional evidence in rebuttal. For matters over which the Board does not have original jurisdiction, a waiver of initial agency of original jurisdiction consideration of pertinent additional evidence received by the Board must be obtained from each claimant in accordance with paragraph © of this section. The date of mailing of the letter of notification of the new evidence will be presumed to be the same as the date of that letter for purposes of determining whether such comment or evidence in rebuttal was timely submitted. No further period will be provided for response to such comment or rebuttal evidence. (Authority: 38 U.S.C. 7104, 7105, 7105A)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 25851, May 15, 1995; 61 FR 20453, May 7, 1996; 67 FR 3105, Jan. 23, 2002; 67 FR 16023, Apr. 4, 2002; 69 FR 53808, Sept. 3, 2004]"

Also, I should clarify that if one has received a Statament of the Case (SOC) or a Supplemental Statement of the Case (SSOC), then the claiamant only has 60 days from the date of that action to submit additional evidence or submit the Form 9.

Vike 17

[Berta]

Vike- I am positive you are correct on the BVA 90 days-

the VA made legal errors in my BVA transfer and I doped out my war plan

with the 90 days in mind and got the remand in weeks-way beforte the 90 days was up-

regarding an SOC or SSOC response-by which more evidence can be sent- the time frame is 60 days and the proposed reg will lower this to 30 days-

I griped with comment at the fed register and posted my argument here somewhere- I think public comment time is over and dont know the outcome-of the 30 day proposed reg yet-

regardless- even with these time limits- as I understand it evidence can be submitted and considered until the pen is in VA's hand to sign off on a decision.

Evidence cannot be cummulative or redundant-

even IMOs- if you have two of them from the same doctor- they both must be completely different-in some respects -relevant to the issue in a different and expanded way-

Edited June 16, 2007 by Berta

[Ricky]

"when the claimant submits Form 9 and the claim has been docketed. Once this is done, I believe the claimant has 90 days after that to submit any additional evidence before the BVA will noty accept any more."

The 90 day rule does not go into effect until the claimant has been notified that their file has been certified and forwarded to the board. When this happens you will know because you will get a letter from the VARO stating that this has occured.

If the letter of the law is followed your claim receives a docket number as soon as you submit the form 9. After that it could sit at the VARO for another 2 years before being certified to the board. Certification does not occur until you have your BVA hearing, if one is requested. At that point the BVA request your complete CFile and they start the rating/review process.. Up until you have been notified that your file/claim has been certified to the board you can submit all the evidence you want to regardless of the assignment of a docket number.

[jecsb4]

"§20.1304 Rule 1304. Request for change in representation, request for personal hearing, or submission of additional evidence following certification of an appeal to the Board of Veterans’ Appeals.

(a) Request for a change in representation, request for a personal hearing, or submission of additional evidence within 90 days following notification of certification and transfer of records. An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans’ Appeals, whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation. Any such request or additional evidence must be submitted directly to the Board and not to the agency of original jurisdiction. The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether the request was timely made or the evidence was timely submitted. Any evidence which is submitted at a hearing on appeal which was requested during such period will be considered to have been received during such period, even though the hearing may be held following the expiration of the period. Any pertinent evidence submitted by the appellant or representative is subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

( Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence.

(1) General rule. Subject to the exception in paragraph ((2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans’ Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on the motion, action will be taken as follows:

(i) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board’s action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal hearing granted as a result of a request so referred or any additional evidence so referred may be treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board’s decision, or testimony presented at a hearing resulting from a request for a hearing so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the effective date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request or additional evidence was received.

(ii) Good cause shown. If good cause is shown, the request for a change in representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

OK, can some one just break this down into "layman's" terms.

Basically, I want to know what restrictions there are to get rid of and / or change my POA. I am assuming that the reference to representation referes to your POA.?

Thanks.

jecsb4

[free_spirit_etc]

I hear you on that one. My husband waited from last August for a copy of his C-file -and didn't get one before he died in February. Now I have started over - and they tell me it takes 6 months to get a copy - or to get an appointment to view it.

But of course, I am supposed to send in evidence. And if you get an IMO - they are supposed to look at the entire C-file.

Though I am thinking if they could at least write the entire C-file isn't neccessary to issue an opinion because they viewed ___, ___, and ____ - hopefully that would be okay.

But yes... it is hard to argue your point on what is in the record without getting the record.

Free

I mean, once you send in your "additional" evidence, can you continue to send in evidence? We have been waiting for C-file for 6 weeks ( not counting the request for SMR's and Medicalrecords back in 2006)never recieved. How can a veteran supply evidence in a timely manner when the vet can't even get a copy of his records so he can look at what the VA is using to determine his claim?

Jangrin