New Evidence

[lu12]

Few more questions???

It's possible to use a "previous or new" C&P report ,as "new evidence or material evidence", when relating to a different issue or different claim?

what actions can I take when in a C&P report the examiner provided both positive and negative medical opinions? but the VARO only considered the negative opinion, could I also use this as new evidence?

lu12

[ruby]

Few more questions???

It's possible to use a "previous or new" C&P report ,as "new evidence or material evidence", when relating to a different issue or different claim?

what actions can I take when in a C&P report the examiner provided both positive and negative medical opinions? but the VARO only considered the negative opinion, could I also use this as new evidence?

lu12

I would think if its a different claim the answer is yes. Some one with more knowledge then me will answer your question.Again in CFR38 somewhere it says and there are case laws to support this that if there is both neg and positive comments then the benefit of the doubt goes to the VET.

[rentalguy1]

you can try, if it's for a different condition than the C&P was conducted for, but I wouldn't look for it to fly. In order to be new, it has to be evidence that was not in existence when the previous decision was made. In order to be material, it has to have the potential to directly affect the outcome of the claim. This was clearly around when the previous decision was made. Who knows, though. Your RO may see it differently.

[lu12]

RG1. thank you,

1.) "In order to be new, it has to be evidence that was not in existence when the previous decision was made".

2.) "In order to be material, it has to have the potential to directly affect the outcome of the claim".

If I consider these points out of you reply then I most also consider a CUE; correct me if I' wrong

lu12

[rentalguy1]

If You want to CUE due to their being both positive and negative medical opinions in the C&P, but the rater only counting the negative ones, then no, you don't have a CUE. I'm sorry.

They don't allow a CUE for the amount of weight that is afforded to evidence.

[Berta]

I had a VA opinion like that many times- in the past- the favorable C & P stuff was ignored-and I raised this issue in response to the SOC.

New and material evidence is also evidence that is not "cummulative nor redundant" to other evidence.

When I obtained an additional IMO from Dr. BAsh (who by then had a VA opinion to knock down) I clearly stated when I submitted this IMO that it was not cuumulative nor redundant to the initial opinion and then told them exactly why-

Also I have used this philosophy in my claims-if you send in probative evidence (evidence which fully supports the merits of the claim) and the VA fails to list it as evidence and acknowledge it-I say send it in again as new and material evidence-

In 1997 I was having a hard time with VACO and didnt understand their initial medicsl review- it was wrong-

good thing I was quick to pick up the phone and directly speak to the medical team-

I will never forget when the chief cardiologist of VACO said to me "WHAT AUTOPSY?"

Here the VARO (I had sent this autopsy in 11 times already to the RO and they never acknowledged it)

had failed to send this extrememely probative evidence to the highest entity my claim could go to-

I immediately got the 12th copy of it in the mail to VACO and they awarded the FTCA claim right away.

If evidence is of equal weight for and against the VA is supposed to award.

But they own the scale they put the evidence on.

[carlie]

The C&P evidence VA has already considered was for what _______ disabling condition ?

You feel this C&P evidence should also be used as evidence for another disabling claim

of what ______ disability ?

Have you ever filed a claim for this other disability of ________ ?

Now, I wonder if VA had a responsibility to see this earlier as an inferred claim ?

carlie