ptsd "new And Material Evidence"

[Josephine]

Just a tad more knowledge needed. Please?

I don't see where the Judge has stated for me to be paid retro to 1992, although, I have posted a similar BVA case at the end of this.

The way I read this, I am to be paid back to 2004 only.

I had chronic anxiety in 1992 when they say I filed. In fact the letter states that I have had it since 1964 with continous treatment.

Why do they not wish to pay me back?

The last page states, I can take this on the CAVC - am I reading this

correctly?

This is what the paper states:

New and Material

Review of the record reflects that the veterans claim for chronic

anxiety with nervousness was initially denied in June 1992 on the

basis that the service treatment records were negative for treatment

of a psychiatric condition, and such treatment was not indicated

until many years thereafter. In making this determination, the RO

considered the claimant's available service treatment records and

post treatment records dated from discharge from service through

1992. The veteran was notified of the RO 's denial in 1992. The

notice letter provided her with information as to her procedural

rights. She did not appeal this and the decision is final.

However, if new and material evidence is presented or secured with

respect to a claim which was disallowed, VA shall reopen the claim

and review the former disposition of the claim. Manio v Derwinski, 1

VET App .145 (1991)

When determining whether additional evidence is new and material, VA

must determine whether such evidence is new and material. VA must

determine whether such evidence has been presented under 38 C.F.R. &

3.156 (a) in order to have a finally denied claim reopened under 38

U.S.C. & 5108 (West 2002 & Supp. 2007). Effective from August 29,

2001, the regulations defining " new and material evidence" were

revised and clarify the types of assistance the VA will provide to a

claimant attempting to reopen a previously denied claim. 38 C.F.R. &

3.156 (a) and 3.159(b). These specific previsions are applicable only

to claims filed on or after August 29, 2001. As the veteran filed his

claim seeking to reopen in December 2002, the Board has considered

these provisions.

To re-open a claim which has been previously denied and which is

final, the claimant must present New and Material evidence. 38

U.S.C.A & 5108 (West 2002 & Supp 2007). Under new amended

regulations, new evidence means existing evidence not previously

submitted to decision makers. Material Evidence means existing

evidence that by itself or when considered with previously evidence

of record, relates to an unestablished fact necessary to substantiate

the claim. New and Material evidence can be neither cumalative nor

redundant of the evidence of record at the time of the last prior

final denial of the claim sought to be reopened and must raise a

reasonable possibility of substantiating the claim. 38 C.FR. & 3.156

(a) (2007).

In this case, the evidence received since the RO's June 1992 denial

of service connection for chronic anxiety with nervousness includes

some duplicate copies of previously considered treatment records.

such records were considered in the previous denial and are not new

and material.

Also added to the claims file since the previous 1992 denial were

additional service treatment records not previously of record and

private and VA treatment records which show continued treatment for

psychiatric complaints.

The service treatment records are new in that they reflect

inservice treatment for psychiatric symptoms which were determined to

preclude further military service.

These documents include inservice assessments as to the veterans

psychiatric complaints. This evidence is considered New in that it

contains information that was not considered at the time of the 1992

decision, and it is material because it purports to show treatment

for psychiatric disability during service which was not objectively

shown by the evidence previously.

The BVA is speaking of the Psychiatric Consulation of Dr. Jones,

Psychiatrist and Board Certified Psychiatrist Dr. McHon.

Without these records there was no way that I could prove service

connection. The VA knew to secure these records upon my first filing,

they just kept lying to me and told me they didn't exist. They did

and I secured them from the St. Louis Archives 2004.

]Here is a Statement from Another BVA Case:

Since the new and material evidence warranting reopening of

the claim included service department records, the proper

effective date of the award of service connection is the date

of receipt of the veteran's original claim, April 1, 1986, if

the veteran's PTSD existed at that time.

CONCLUSION OF LAW

The criteria for an effective date of April 1, 1986, for the

award of service connection for PTSD have been met. 38

U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156©, 3.400

(q)(2) (2004); Spencer v. Brown, 4 Vet. App. 283, 293 (1993).

Didn't I prove that I had Chronic Anxiety at the time also?

Thanks a bunch,

Betty

[free_spirit_etc]

Betty,

My first thought is that the other BVA case was actually a case in which they person appealed the actual effective date.

IF you only get paid back to 2004 - you can appeal the effective date - and if it had to go all the way to the BVA - your decision would look like the one posted.

Again, I am assuming the BVA case you posted is of this nature - that the person had already been granted the award - but had appealed the effective date - and the BVA was deciding THAT issue.

Again, you might want to consider the proactive approach I suggested in the SUCCESS thread - to point out to the RO (through IRIS or a letter) what the BVA said about the SMRS being new AND material - and since the law says ___ - does that mean THEY will award it all the way back - or should YOU do file something?"

You would basically be TELLING them what you want them to do - but framing it as a question - so they would be more likely to try to be helpful.

Free

[Josephine]

Betty,

My first thought is that the other BVA case was actually a case in which they person appealed the actual effective date.

That BVA case is one denied at the R.O and to BVA. I thought I could just go to the court and get it over with.

IF you only get paid back to 2004 - you can appeal the effective date - and if it had to go all the way to the BVA - your decision would look like the one posted.

That would be about another 3-4 years for me. If I appealed the decision now, I could get into the courts in a few months.

Again, I am assuming the BVA case you posted is of this nature - that the person had already been granted the award - but had appealed the effective date - and the BVA was deciding THAT issue.

You got it.

Again, you might want to consider the proactive approach I suggested in the SUCCESS thread - to point out to the RO (through IRIS or a letter) what the BVA said about the SMRS being new AND material - and since the law says ___ - does that mean THEY will award it all the way back - or should YOU do file something?"

I can give it a try, but I know that bunch in Huntington. Ignorant.

You would basically be TELLING them what you want them to do - but framing it as a question - so they would be more likely to try to be helpful.

They are going to hate to see me come back to them, they will probably hide my claims file when it arrives.

Always,

Betty

Free

[Pete53]

Betty:

You will have to wiat till you get the money and the letter that grants award but at least your benefits will be in place, you will get a check each month and you have every right to appeal.

The decision made by the Judge is pretty much the Judge telling the VA what to do.

If I were in your shoes I would file a NOD and get a lawyer.

[Josephine]

Betty:

You will have to wiat till you get the money and the letter that grants award but at least your benefits will be in place, you will get a check each month and you have every right to appeal.

The decision made by the Judge is pretty much the Judge telling the VA what to do.

If I were in your shoes I would file a NOD and get a lawyer.

When can I get the lawyer? The BVA last page says if you don't like our decision you can appeal.

when can I do what?

Betty

[free_spirit_etc]

Betty,

I don't think you can appeal the decision now. You don't want to appeal the decision that has been made - that you are granted SC for anxiety.

You can't appeal the effective date or the percent until they make THAT decision. And the BVA gave it back to the RO to decide that.

If the RO makes a decision you don't agree with on either of those - then you can take THAT back up through the channels...and yes, it will take awhile.

But I don't think you can appeal the fact that the BVA didn't grant the effective date. And I wouldn't count on the RO reading the whole BVA statement - they will most likely go back to 2004. I think you stand a chance of it going back to the initial claim(s) if you point out the law - and the dates - and ask them what to do. Or else just see if you can submit evidence to make sure they get the right effective date to start with. The same with the percentage - See if as you are already 100% and declared unemployable - if that will be granted. See if since you already get pension AND the DOCTORS said you are unemployable - if that claim is recognized - or if you have to file a separate claim.

Or you also have the choice to wait - and see what their little brains come up with on their own.

I wouldn't overwhelm them with any information at this point - as they don't like to read a lot. But I think it would be okay to send SOME brief, to the point, questions and / or statements.

I DO believe that you CAN get 100% ALL the WAY back... How long that takes is the question of the day.

I vote for the plan that takes the least amount of time - as long as it isn't so stressful that it isn't worth it.

You are already a hero! You conquered the demons!!

So any further battles are at your discretion.

You can lay down your sword - or you can pick it back up - any time YOU want.

And maybe..just maybe..you have already tamed the beast - (though I am not sure if tame beasts read any better than wild ones........)

However, they DO read - they know EXACTLY which parts to IGNORE.

Free

[Josephine]

Betty,

I don't think you can appeal the decision now. You don't want to appeal the decision that has been made - that you are granted SC for anxiety.

Got you, I see now, I should have allowed the AMC to make the decision, as It would have not took any longer for a decison than waiting for the R.O. With their decision, I could have appealed it.

You can't appeal the effective date or the percent until they make THAT decision. And the BVA gave it back to the RO to decide that.

That was a big mistake on my part. I will have to go with it now.

If the RO makes a decision you don't agree with on either of those - then you can take THAT back up through the channels...and yes, it will take awhile.

They know I will be deceased by the end of it, so no need to do it.

But I don't think you can appeal the fact that the BVA didn't grant the effective date. And I wouldn't count on the RO reading the whole BVA statement - they will most likely go back to 2004.

I am sure you are correct.

I think you stand a chance of it going back to the initial claim(s) if you point out the law - and the dates - and ask them what to do. Or else just see if you can submit evidence to make sure they get the right effective date to start with.

The same with the percentage - See if as you are already 100% and declared unemployable - if that will be granted.

I will check, but I have about a 10 page award in a box stating this. I got this from filing a claim for service connection and I guess they thought they could shut me up with it.

See if since you already get pension AND the DOCTORS said you are unemployable - if that claim is recognized - or if you have to file a separate claim.

I will do. Boy, what a stupid mess, that I sure wished I had never became involved in. I would rather have the years I spent in this darn claim back and that stupid C&P that I went through.

Or you also have the choice to wait - and see what their little brains come up with on their own.

What brains do you think they have over there, they don't have one.

I wouldn't overwhelm them with any information at this point - as they don't like to read a lot. But I think it would be okay to send SOME brief, to the point, questions and / or statements.

They are too stupid to read anything you send them. Honest, they are.

I DO believe that you CAN get 100% ALL the WAY back... How long that takes is the question of the day.

I probably won't even fool with it. I have about had it with this stupid game.

I vote for the plan that takes the least amount of time - as long as it isn't so stressful that it isn't worth it.

You just said it, It is't worth it.

You are already a hero! You conquered the demons!!

No, they still won. Dr. Mxxx was telling the truth in his C&P in 2004 and we are at 2008.

So any further battles are at your discretion.

After the path I have been down, don't think it would be worth it.

You can lay down your sword - or you can pick it back up - any time YOU want.

I know what I would like to do with it.

And maybe..just maybe..you have already tamed the beast - (though I am not sure if tame beasts read any better than wild ones........)

I am sure they don't.

However, they DO read - they know EXACTLY which parts to IGNORE.

You are right on that.

Thanks a bunch!

Josephine

Free

Edited April 5, 2008 by Josephine