What Exactly Is "new And Material Evidence"

[tomtomtom]

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?

[Pete53]

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.

[cloudcroft]

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 September 11, 2007 by cloudcroft

[Pete53]

John D

Excellent advice