New And Material Evidence

[Steppenwolf]

This "new and material evidence" thing has been a thorn in my side and my case since the begining. For years this rule has invalidated almost every piece of evidence that i have submited.

If my rep couldn't help me through this horrible rule then why did it take a federal judge to see that my whole case was mishandled and remanded back to ?. i don't even know who it was remanded back to. My current DAV rep keeps telling me to "do nothing". i think this is also horrible advice and up until now i have had no "advocates" to tell me if his advise is as bad as all of the rest of the advice i've gotten from reps over the years.

i wanted to get an IMO from doctor BASH and my rep told me: "Your case is strong enough as is why pay this guy $3000.00 for something that may not help your case"

i have been given some of the most horrible advice over the years and i got the feeling that the fed judge that i appeared before June of 06 saw that but instead of ruling for a % of disability she just sent it back to the idiots who screwed up in the first place.

Now i've been told that i'm stuck with the DAV and can not change service officers.

What's true?

[Vike17]

"new and Material" evidence is evidence that the VA was previuosly anaware of when they made their prior decision and evidence that bear directly on the fact of why the previous claim was denied. This rule is to prevent veterans from submitting redundant "evidence."

"If my rep couldn't help me through this horrible rule then why did it take a federal judge to see that my whole case was mishandled and remanded back to ?. i don't even know who it was remanded back to. My current DAV rep keeps telling me to "do nothing". i think this is also horrible advice and up until now i have had no "advocates" to tell me if his advise is as bad as all of the rest of the advice i've gotten from reps over the years."

What do you mean by a federal judge?? Do you mean a Veterans Law judge at the BVA? Your claim was either remanded to the Appeals management Center (AMC) or your Regional office. One thing to keep in mind is that just because the BVA remands a claim, doesn't mean something was screwed up in the regional offices initial decision. Many times a remand happens because the claimant soemwhere along the line sent in evidence to be considered and the "agency of original jurisdiction" needs to have another look see. It looks like you finally supplied "new and Material" evidence after numerous tries and the BVA probably remmanded it so that new and material evidence could be considered by the RO, or the AMC did some additional development and subsequently received some evidence and are considering it.

"i wanted to get an IMO from doctor BASH and my rep told me: "Your case is strong enough as is why pay this guy $3000.00 for something that may not help your case""

Your rep maybe right. It's hard to tell without actually seeing your claims folder.

"i have been given some of the most horrible advice over the years and i got the feeling that the fed judge that i appeared before June of 06 saw that but instead of ruling for a % of disability she just sent it back to the idiots who screwed up in the first place."

If the Veterans Law Judge could have made a decision on your claim already, believe me, she would have done so. Like I said before, it looks like you evetually submitted "new and Material" evidence and the BVA sent it back to the RO or AMC for that evidence to be considered.

Vike 17

Edited June 26, 2007 by Vike17

[Steppenwolf]

Thanks for answering my question Vike. Let me answer a few questions that you asked and see if i can answer a few others.

"What do you mean by a federal judge?? Do you mean a Veterans Law judge at the BVA?"

Had a DRO hearing in May of 04. Appealed her decision. Was offered a video hearing or in person hearing with whatever kind of judge hears that claim. Since it was held in a VA hospital it probably was a Veterans Law judge. The judge was always refered to as a "federal judge". If this helps any, i've been told that there is only one more appeal left. What might that be?

If this isn't getting off track a bit allow me to say that each service officer rep that i had looked at my evidence and in essence saw it differently than the next. As i mentioned in another post the one guy who was the best quit from burn out. That said he found the fatal flaw after taking first my decisions home with him, reading them, and then asking me specific questions about each decision dating back to the first one in 1971. If my may paraphrase the words in one part of the decision itself it basically said: " Records and a support letter from Mr.X's doctor were recieved after this decision was made " The rep that quit ( that sounds bad but i understood his choice to leave ) asked if anyone resubmitted the claim asking that that info be taken into consideration. i told him no.

Instead the rep at the time was getting pissed off and upset with the way i looked: Long hair and long beard, hippie garb. He told me i looked like Charles Manson and that " If we're going to win this case you need to clean up your act " i refused to change my appearance. Was this what we fight for in America? i did my time, got an honorable discharge, was awarded metals, was injured in service and chose then to follow my heart. Never was arrested, went to college on the GI Bill, had a job, what more did they want? So an appeal was filed and perhaps another letter was written by my private physician which was deemed " no new and material evidence " But it was never mentioned that the original evidence was never considered. This point was not made until June 2006 by me speaking on my own behalf to the judge then again reiterated by my DAV rep who told me when we walked out of the hearing that he would be i would be awarded at least 70%.

It might also be noted that after the decision i asked for an appearance before the board. Once again my reps did not want to walk into the hearing with me. They wanted me to " go to the drugstore and buy a razor and shave ". i got the feeling in the hearing that the board didn't like what they saw either.

So you said somewhere that you could say without seeing the decision and my evidence. This is why i was asking who hear can help me at this point in time? This case has dragged on for all of these years perhaps on a technicality and influenced by prejudice rather than the facts. i am willing to travel anywhere in hopes of finding the one person who can argue the points that the judge notes in her decision and perhaps to submit new evidence which i am told that i can do up until the decision is made. Also as i mentioned in a post somewhere here on hadit that my current DAV rep, the one who read my file in 3 days ( that is his idea of reviewing my file ) suggested that i NOT get an IME/IMO from Dr Bash with whom i had spoke on the phone to and who stated that he would not write an IME if he didn't think that i had a case. My DAV rep poo pooed the indea of paying him $3000 for "evidence you already have".

i can no longer hold a 9 to 5 job and haven't for years as the result of injuries that happened in the service or in the VA. Even the zero percent was never challenged for an increase.

i want to start a non-profit Veterans Adocacy group that will agressively help vets who have become victims of the system. i will write about this idea in a sperate post soon.

Thanks again Vike

"new and Material" evidence is evidence that the VA was previuosly anaware of when they made their prior decision and evidence that bear directly on the fact of why the previous claim was denied. This rule is to prevent veterans from submitting redundant "evidence."

"If my rep couldn't help me through this horrible rule then why did it take a federal judge to see that my whole case was mishandled and remanded back to ?. i don't even know who it was remanded back to. My current DAV rep keeps telling me to "do nothing". i think this is also horrible advice and up until now i have had no "advocates" to tell me if his advise is as bad as all of the rest of the advice i've gotten from reps over the years."

What do you mean by a federal judge?? Do you mean a Veterans Law judge at the BVA? Your claim was either remanded to the Appeals management Center (AMC) or your Regional office. One thing to keep in mind is that just because the BVA remands a claim, doesn't mean something was screwed up in the regional offices initial decision. Many times a remand happens because the claimant soemwhere along the line sent in evidence to be considered and the "agency of original jurisdiction" needs to have another look see. It looks like you finally supplied "new and Material" evidence after numerous tries and the BVA probably remmanded it so that new and material evidence could be considered by the RO, or the AMC did some additional development and subsequently received some evidence and are considering it.

"i wanted to get an IMO from doctor BASH and my rep told me: "Your case is strong enough as is why pay this guy $3000.00 for something that may not help your case""

Your rep maybe right. It's hard to tell without actually seeing your claims folder.

"i have been given some of the most horrible advice over the years and i got the feeling that the fed judge that i appeared before June of 06 saw that but instead of ruling for a % of disability she just sent it back to the idiots who screwed up in the first place."

If the Veterans Law Judge could have made a decision on your claim already, believe me, she would have done so. Like I said before, it looks like you evetually submitted "new and Material" evidence and the BVA sent it back to the RO or AMC for that evidence to be considered.

Vike 17

Edited June 27, 2007 by Steppenwolf

[carlie]

Steppen,

You posted,

"Since it was held in a VA hospital it probably was a Veterans Law judge."

I don't think any hearings are ever held in a VA hospital, it was more likely than not, a regional office.

After a DRO denial, if you can't get anywhere with a post DRO decision, you fill out a form 9 or I-9, and that's an appeal to the BVA.

If you can't work due to disabilities incurred from military service you will need to get a doctor to state that in writing, and be able to back it up showing you currently have XXX disability, the doc feels it is as likely as not related to your military service due to evidence XXXXX. This all needs to come from a doctor.

If you have the right evidence and someone actually reads it ALL when they are rating your claim, then it will not matter how long your hair or beard is, or if you poped positive on thc on a blood count, or what-ever else.

It's all in:

1) having the evidence

2) a rater actually reading, understanding and applying regulations as intended.

jmho,

carlie

[Jay Johnson]

SOs tend to be very good at procedural matters, but are fairly useless outside of that. Anyone can read through the regs and the prior BVA/CAVC rulings to compile a good case for THEMSELVES; 99% of the time (some cases are trickier than others). Of the 7 or 8 SOs I had contacted for my wife, 4 of them were completely clueless, 2 were A-holes and the first one, though helpful, did nothing more than staple the evidence *I* collected together and ship it off to the right people with the right forms.

Just keep in mind that SOs are not legal scholars, nor do they have some inside info into the VA system...most of what they know, outside of experience, can be learned via the internet. So, if you feel your SO's are holding you back, then dump them and do it yourself....I got 100% + A&A for PTSD without their help; it's not impossible.

SO's are best for people who are completely new to the system and who don't have the time/ability to learn the ins/outs of the VA (which can take a LONG time). However, the new law concerning the use of lawyers should be helpful to more vets.....it will also likely make SOs obsolete (or for the poor who can't afford lawyers....but that's a class issue and a whole 'nother can of wurms all together).

[Steppenwolf]

Carlie,

      "I don't think any hearings are ever held in a VA hospital, it was more likely than not, a regional office."

It was held at the VA hospital.

"someone actually reads it ALL when they are rating your claim,"

If someone actually read it ALL perhaps Hadit wouldn't exist as it does now: to help those who have not been treated fairly or correctly.

Steppen,

You posted,

"Since it was held in a VA hospital it probably was a Veterans Law judge."

I don't think any hearings are ever held in a VA hospital, it was more likely than not, a regional office.

After a DRO denial, if you can't get anywhere with a post DRO decision, you fill out a form 9 or I-9, and that's an appeal to the BVA.

If you can't work due to disabilities incurred from military service you will need to get a doctor to state that in writing, and be able to back it up showing you currently have XXX disability, the doc feels it is as likely as not related to your military service due to evidence XXXXX. This all needs to come from a doctor.

If you have the right evidence and someone actually reads it ALL when they are rating your claim, then it will not matter how long your hair or beard is, or if you poped positive on thc on a blood count, or what-ever else.

It's all in:

1) having the evidence

2) a rater actually reading, understanding and applying regulations as intended.

jmho,

carlie

[Steppenwolf]

Too bad there isn't a way to know who's good and who's not. But that's like wishing for peace in a world where ego's run wild and people die in the name of God and Oil.

SOs tend to be very good at procedural matters, but are fairly useless outside of that. Anyone can read through the regs and the prior BVA/CAVC rulings to compile a good case for THEMSELVES; 99% of the time (some cases are trickier than others). Of the 7 or 8 SOs I had contacted for my wife, 4 of them were completely clueless, 2 were A-holes and the first one, though helpful, did nothing more than staple the evidence *I* collected together and ship it off to the right people with the right forms.

Just keep in mind that SOs are not legal scholars, nor do they have some inside info into the VA system...most of what they know, outside of experience, can be learned via the internet. So, if you feel your SO's are holding you back, then dump them and do it yourself....I got 100% + A&A for PTSD without their help; it's not impossible.

SO's are best for people who are completely new to the system and who don't have the time/ability to learn the ins/outs of the VA (which can take a LONG time). However, the new law concerning the use of lawyers should be helpful to more vets.....it will also likely make SOs obsolete (or for the poor who can't afford lawyers....but that's a class issue and a whole 'nother can of wurms all together).