Decision Basis For Not Rating Higher

[tssnave]

When the VA renders a Decision and gives you the reason that they are not rating you higher and you satisfactorily address this issue with new and material evidence in your appeal does this:

A.) satisfy the VA's evidence requirement allowing them to rate you higher or

B.) do they change their Decision basis to another reason to deny you the higher rating?

Please let me know if you are citing regulation (and if so, which one and a link to it if possible), your experience, or conjecture.

I'm still trying to wrap my mind around the whole appeal concept and given the VA has me in an endless hold pattern I am curious how it is supposed to play out and how it has played out for others on hadit.

Thanks,

TS Snave

Edited November 28, 2007 by tssnave

[Berta]

The VA is supposed to consider any new and material evidence you send- during the appeal period-

somewhere here at hadit one of of members-Vike- posted the whole scenario of a claim from start to finish-

What is very upsetting to me- having been a claimant twice is that years ago the VA actually considered evidence sent in response to a SOC or SSOC-

these days- unless you have a good vet rep who is willing to support new evidence-it seems that many ROs ignore new and material evidence and cant seem to wait to get the claim to the BVA and out of their hair-

They are supposed to acknowledge all evidence -the only regs I can think of are the following and I cited them right in my recent response to the VA asking these regs to be properly applied to my clams-- - in case they forgot my rights as a claimant- AGAIN:

"§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

I also cite:

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

ALSO I Cite:

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person."

[cloudcroft]

tssnave

"New and material evidence" is a term usually associated with reopening a closed claim...but certainly, any evidence you submit re: a claim that is already in-progress should at least be "material" if not "new."

Good luck,

-- John D.

[john999]

TSSNave

I think the answer to your question is that the VA can do {A} or {B}. They should grant the benefit if your evidence addresses the reasons they denied the benefit. They don't always do it the first time, however.

[tssnave]

Thanks for all the replies. I appreciate the regulation citations, opinions, and experiences shared by you all. You'd think that they would have to award if you addressed their reason but so long as they are allowed to make it a moving target we'll just stay wrapped up in the red tape.

I just caught up on my hadit reading last night and read the USA Today link where it said that over 50% of the claims to BVA are returned to the RO. Give me a break. We beat ourselves up trying to understand the system, the rules, regulations, evidence and procedure requirements and then the VA doesn't even get it right half the time!?!?!? ARRRGGGGGG!!!!

Berta, I actually printed off Vike's paper early on but some of the concepts are so alien when you've never done a claim before that it didn't make any sense to me at the time. Now that I've actually gotten a Decision, submitted an NOD and am in the appeal process I should read it again. I never got a SOC for my 1st appeal for service connectiong requesting that they actually read the letters from the active duty shrinks who treated me, they just rendered a Decision for 50% sc so the whole SOC, I-9, BVA and beyond is the part of the process I'm unclear on. My prayer is that this appeal will be handled (eventually - it took them 3 years the first time and they're almost up to a year this time) like the first one and they will adjudicate the claim properly and rate me 70%/100% IU P&T. In the meantime I just trying to understand how it could play out and what I should be doing to prepare in case they do send an SOC.

I've read your other posts where you rail against the VA's idea to give the vet 30 days instead of 60 days to reply to an SOC and I'm right there w/ you. The VA can't seem to keep my zip code straight (and I've never sent them anything to alter it they just manage to do so on their own), they date a letter on the 1st and then mail it out on the 6th, and I only call my VSO once a month so if they went to a 30 day turn around time vets would get even more royally screwed over than they do now.

Thanks again for all the replies. I really appreciate the help.

Thanks,

TS

Edited November 29, 2007 by tssnave