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What Exactly Is "new And Material Evidence"


tomtomtom

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I was denied for several things. I didnt put in a NOD because at the time I didnt understand how any of it worked and the letter I recieved said I needed "new evidence" of which I had none. Several years have passed and I want to reopen my claim.

I have recently (in the last year) come to acquire old profiles (24 months worth) listing the same conditions the VA denied me, a statement from my Doc at WRAMC to the med board stating the chronic conditions I have, personal statements from my squad leader, 1st SGT, and CO stating when I got to their unit I was in excellent physical shape and when I was boarded they knew I was being treated at WRAMC for the conditions which the VA denied me. Old perscription pain med bottles (in my denial letter the VA said I only ever got 1 perscription for pain meds) I have 6 bottles in front of me right now those are just the ones i could find I had many more, the SSG in his letter even remembered that after I started treatment at WRAMC iwas "never without a bottle of pain meds". OLD PT cards which show I regularly took and passed the APFT through 2 units and once with my last unit then had almost 2 years of profiles which prevented my taking a PT test.

I have two questions:

1) How do I know (can I find out) what evidence the VA had when the decided to deny me?

2)Are the items I have acquired enough to have my claim reopened?

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I think you night have failed to provide one of the Hickson elements- the 3 elements that control all claims:

1. you must have a documented and current disability

2. There must be in your SMRs or via buddy statements-something in your service that you claim is causing the present disability.

3. you must have a documented nexus- the link betwen # 1 and # 2.

If a vet has a chronic condition documented by a doctor it does not mean the condition is due to service.

In your case it seems you mean that right after discharge you sought VA medical care if WRAMC is a VAMC.This does not mean however that your condition is presumptive-and I cannot tell if you filed a claim during the first year after service.

"1) How do I know (can I find out) what evidence the VA had when the decided to deny me? "

They should have listed the evidence in the denial.If you did not file a NOD they did not have to expand the reason for denial in a Statement of the CAse-

2)"Are the items I have acquired enough to have my claim reopened"

"a statement from my Doc at WRAMC to the med board stating the chronic conditions I have" I am not sure what you mean by med board-did you get a medical discharge?

You can write to Walter Reed and request a copy of these medical records.Put your C file number on the request.

Any claimed condition for service connection has to have the nexus factor.

Were you treated for these conditions in service?

Are they documented in your SMRS?

You can go to the NARA web site and click on military records and print off the SF 180 ,fill out, sign, copy amd send,or apply on line for your SMRs.

I am confused by your post- can you tell us what these conditions are that you are claiming and the exact wording in the VA denial letter?

New and material evidence is evidence the VA has never seen before, evidence that is not cumulative to what they already have, and evidence that has a direct bearing on the claim.

"when I was boarded" did you mean a medical review board?

Do you have a condition that the VA awarded a "0" SC award for?

???

Edited by Berta
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I think you night have failed to provide one of the Hickson elements- the 3 elements that control all claims:

1. you must have a documented and current disability

2. There must be in your SMRs or via buddy statements-something in your service that you claim is causing the present disability.

3. you must have a documented nexus- the link betwen # 1 and # 2.

If a vet has a chronic condition documented by a doctor it does not mean the condition is due to service.

In your case it seems you mean that right after discharge you sought VA medical care if WRAMC is a VAMC.This does not mean however that your condition is presumptive-and I cannot tell if you filed a claim during the first year after service.

"1) How do I know (can I find out) what evidence the VA had when the decided to deny me? "

They should have listed the evidence in the denial.If you did not file a NOD they did not have to expand the reason for denial in a Statement of the CAse-

2)"Are the items I have acquired enough to have my claim reopened"

"a statement from my Doc at WRAMC to the med board stating the chronic conditions I have" I am not sure what you mean by med board-did you get a medical discharge?

You can write to Walter Reed and request a copy of these medical records.Put your C file number on the request.

Any claimed condition for service connection has to have the nexus factor.

Were you treated for these conditions in service?

Are they documented in your SMRS?

You can go to the NARA web site and click on military records and print off the SF 180 ,fill out, sign, copy amd send,or apply on line for your SMRs.

I am confused by your post- can you tell us what these conditions are that you are claiming and the exact wording in the VA denial letter?

New and material evidence is evidence the VA has never seen before, evidence that is not cumulative to what they already have, and evidence that has a direct bearing on the claim.

"when I was boarded" did you mean a medical review board?

Do you have a condition that the VA awarded a "0" SC award for?

???

I was Medically boarded because of a knee. The Dr who was seeing me was at WRAMC (Walter Reed Army Medical Center). He was treating me for Plantar fasciitis, and pes planus which developed after I started seeing him for my knee. I was seperated and put in my VA claim. The Va granted me 10% Knee, and 0% hepatitisB, my claim for Plantar fasciitis, symptomatic pes planus, and back strain were not granted. Its been a few years I do not have the decision letter I misplaced it over the years. I didnt not have anything new as far as evidence to give the VA when I got my decision letter and considered myself another soldier screwed by the VA.

----forward 5 yrs----

Cant stand more than a few min without severe foot pain, back constantly hurts; I want to reopen my claim. I recently got in contact with my squad leader and 1st SGT along with my old unit commander. Thankfully the SSG still had some copies of my profiles which he sent to me. Several months ago my son was cleaning out our attic and found several boxes. I found my old PT cards which show I was physically capable through 2 units and a reenlistment before my feet and back went to hell. The SSG,1stSGT, and former CO have all sent me letters which state when I came to that unit I was in good physical shape with no problems. These were not my "buddies" they were my chain of command. The letters also state what problems they knew I was being treated for at WRAMC (PF/PP/knee/back pain). I have a copy of the accident report from an auto accident which occoured while I was in service which caused $10000 in damage to the car i was in, I have a copy of my visit to the troop medical center for that accident. I have a letter from the Dr that was treating me to the medical board stating my main problems were my knee as well as chronic plantar fasciitis, and symptomatic pes planus.

My contention is that IF I had any preexisting conditions they were asymptomatic and aggravated by service. I dont know how much of this information the VA had when they made their decision and dont want to waste time gathering paperwork just to have the VA say "its not new evidence".

I started going to a VA facility about 6 months ago and the DR there says plantar fasciitis, and back strain, I've been on anti-inflamatories and sleep meds (cant sleep cause of pain/discomfort), and I've been going to PT at a VA facility for my back which they say is chronic lumbar strain. I'm due to see a VA podiatrist in a month and cant wait to see what he says.

Edited by tomtomtom
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I was Medically boarded because of a knee. The Dr who was seeing me was at WRAMC (Walter Reed Army Medical Center). He was treating me for Plantar fasciitis, and pes planus which developed after I started seeing him for my knee. I was seperated and put in my VA claim. The Va granted me 10% Knee, and 0% hepatitisB, my claim for Plantar fasciitis, symptomatic pes planus, and back strain were not granted. Its been a few years I do not have the decision letter I misplaced it over the years. I didnt not have anything new as far as evidence to give the VA when I got my decision letter and considered myself another soldier screwed by the VA.

----forward 5 yrs----

Cant stand more than a few min without severe foot pain, back constantly hurts; I want to reopen my claim. I recently got in contact with my squad leader and 1st SGT along with my old unit commander. Thankfully the SSG still had some copies of my profiles which he sent to me. Several months ago my son was cleaning out our attic and found several boxes. I found my old PT cards which show I was physically capable through 2 units and a reenlistment before my feet and back went to hell. The SSG,1stSGT, and former CO have all sent me letters which state when I came to that unit I was in good physical shape with no problems. These were not my "buddies" they were my chain of command. The letters also state what problems they knew I was being treated for at WRAMC (PF/PP/knee/back pain). I have a copy of the accident report from an auto accident which occoured while I was in service which caused $10000 in damage to the car i was in, I have a copy of my visit to the troop medical center for that accident. I have a letter from the Dr that was treating me to the medical board stating my main problems were my knee as well as chronic plantar fasciitis, and symptomatic pes planus.

My contention is that IF I had any preexisting conditions they were asymptomatic and aggravated by service. I dont know how much of this information the VA had when they made their decision and dont want to waste time gathering paperwork just to have the VA say "its not new evidence".

I started going to a VA facility about 6 months ago and the DR there says plantar fasciitis, and back strain, I've been on anti-inflamatories and sleep meds (cant sleep cause of pain/discomfort), and I've been going to PT at a VA facility for my back which they say is chronic lumbar strain. I'm due to see a VA podiatrist in a month and cant wait to see what he says.

YES!!! You have "New and Material Evidence" to reopen your claim. Your VA facility treatment records, which you may already know can be obtained at the VAMC Release of Information (and something I would recommend you do at every visit....get copies that is). You can submit a VA Form 21-4138 requesting your claim for the condition(s) you initially filed for (that the VAMC have now documented) to be reopened.

The New and Material Evidence is the VAMR you now have as a result of the past 6 months of treatment. The "current" medical condition, although the same as described while in service, is resurfaced and a "current" diagnosis being made by the VA docs. You don't have to wait to see the podiatrist to get the ball rolling. You can complete a fillable VA Form 21-4138 by going to va.gov and then go under the Board of Veteran Appeals and scroll down to VA Forms. Enter 21-4138 and it will come up for you.

When the VARO begins adjudicating on your claim, whatever you've gathered since that time can be submitted when/if they request you privide evidence to support your claim. I would not send originals and I would not send anything without certifying it return receipt. I would also suggest getting in contact with a Service Organization and getting an SO to help you out.

If your info is already contained in your C-File, VARO will surely let you know. Just be sure you invest in making copies of EVERYTHING, even your old RX bottles, if possible.

Best regards and good success in the reopening of your claim.

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"New" evidence is pretty much self-explanatory and not as hard to come by as "material" evidence. "Material" evidence, unfortunately, is where most vets get it wrong. This puts said vets at a disadvantage because the VA sure knows what "material" evidence is...a vet can't afford to be at a disadvantage; he/she needs to have all the cards in the deck when in a "game" with the VA and ignorance will cost him/her.

"Material" evidence is more than a having "direct bearing" on a claim. Considerably more. To paraphrase the VA's position, it's evidence that were it available at the time of the orginal decision -- which most likely was a denial -- it would have altered the decision, i.e., rendered an outright win or at least put the case in a state of equipoise which would also be a win (the "Benefit of Doubt" doctrine would then apply in the vet's favor = a win).

In practical application, if the original decision was a denial (since one doesn't usually want to reopen a claim he/she has WON, just claims that were denied), the "new and material" evidence would probably have resulted in winning the case either from having a preponderence of the evidence FOR the veteran (vs. a preponderance of the evidence AGAINST the vet which resulted in said denial) or, the "new and material" evidence puts the claim in a state of equipoise.

In short, most vets think new evidence = material evidence. It doesn't.

New evidence is relatively easy to come by because it could be anything "new" even though it's most likely trivial (weak) evidence; material evidence is more difficult as it must be VERY PERSUASIVE to the point of a win or at the very least equalizing the evidence FOR the vet being granted his/her claim vs. the evidence the VA has AGAINST the vet to deny his/her claim.

Without both NEW and MATERIAL evidence -- it must be BOTH -- a case does not meet the requirements for reopening.

-- John D.

Edited by cloudcroft
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  • HadIt.com Elder

A Doctors Opinion is always new and material evidence if it has not been seen before.

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Not if it's vague, indecisive, or is not complete re: a clear rationale for said IMO. IMOs have to be written according to VA standards and most civilian doctors need to be made aware of this by the vets asking for an IMO. The VA examinations forms/guidelines available should be shown to the civilian doctor to be sure everything is done as per VA expectations.

-- John D.

A Doctors Opinion is always new and material evidence if it has not been seen before.
Edited by cloudcroft
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Not to be argumentative but sometimes you just luck out. My Doc wrote that he had reviewed my Service Medical Records and his diagnosis for me was Panic Disorder acquired while on active duty with numerous write up in my Medical Records and that my GAF was 45 and I could not work.

He also laid out all the stuff that the VA was not doing at the time and pointed out that the diagnosis that the VA was using to deny service connection was not a diagnosis made in Service but by someone at the VARO.

If I had requested my Doc to write something else I would have ended up with a weaker claim.

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I agree that you can luck out sometimes in various ways -- like getting a fairly lenient/understanding rater instead of a hard-core rater is one such "luck-out" -- just don't count on it.

And if a vet is not very knowledgeable re: the VA Claims process, he/she really isn't in a position to advise a doctor what to write or not write. In that case, I would stick to the VA exam guidelines.

So I was just advising to be as solid as you can re: your claims case and rely on that mainly...anything else positive that comes your way is gravy.

As for IMOs, I would advise a vet to get the civilian IMO doctor to AT LEAST READ the appropriate (disability-specific to the vet's claim) guideline FIRST [EDIT: Print your particular disability exam form out and take it to the civilian IMO doctor to read, preferably in advance of your appointment]:

http://www.vba.va.gov/bln/21/Benefits/exams/index.htm

IMO, a civilian doctor who does his/her IMO according to these VA guidelines -- i.e., VA-Speak (similar to Green-Speak) -- makes for a much more solid Independent Medical Opinion and one that the VA is much more likely to accept AND give appropriate weight to since the VA and the civilian doctor are on the same page. And don't forget that the VA is very insistent on a clear rationale for the doctor's medical opinion...an opinion alone doesn't cut it.

Good luck,

-- John D.

[EDIT] P.S. The rationale is most important when a vet is trying to get service connection, TDIU or the like, where a civilian IMO doctor says a disability is service-related or a vet isn't able to work...the VA will want to know how he/she came to that conclusion. And of course, it has to be convincing. Here is an excerpt taken from a brief article talking about veterans filing a claim:

"The key phrase in a letter from a physician is that the problem “more likely than not” came from or began during the patient’s time in the service, Howell says." [http://www.gijobs.net/magazine.cfm?id=248]

Words like these, phrased exactly like this, make all the difference. The rationale is then the doctor explaining the reason for those words based on and related to the medical findings and/or reading a vet's medical records.

Here's another VERY GOOD article (although a bit dated) on this re: getting service connection for a disability (at least it outlines the process and your options, plus even gives Section 1151 and Tort claims info):

http://www.amvets-alaska.org/servconn.htm

-- JD

Edited by cloudcroft
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  • HadIt.com Elder

John D

Excellent advice

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