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

[carlie]

lu12,

I do not feel it would be a CUE claim.

Here's Benefit of Doubt info incase you want to study that.

jmho,

carlie

§ 3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

(Authority: 38 U.S.C. 501)

[50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

[lu12]

That is right after six months; the one thing that I find positive is the fact that they sent me copy of the complete c-file.

First problem related to the cervical Issue: Denied:

1.) examiner did not reconcile with the various private IMO's as per remand by the BVA

2.) examiner provided a medical opinion and Dx's base on a wrong Dx's or issue

3.) 1998 original claim was/is for: HNP C2-C3 and DJD Diagnosis.

4.) 2007 C&P examiner based his opinion base on a 2003 VHA x-ray with the following Dx.'s:

• cervical spondylosis
  
• with facet joint disease
  
• cervical strain
  
  
  5.) examiner eluded medical evidence cited by the BVA, ignored evidence from 1995 to 2003
  6.) examiner discarded or disregarded evidence from 2003 to present including 3 nexus IMO's.
  
  Second problem Dysthymic issue: 30% Dysthymic disorder:
  
  1.) 1998 original claim was/is for Depression not Dysthymia
  2.) examiner base her medical opinion and evaluation on a chronic dysthymic disorder GAF:60
  3.) at the same time, the examiner stated "veteran's mental disorder symptoms represent a moderate impairment for social and occupational impairment".
  4.) examiner alleged to complete her evaluation considering the SW survey report???
  5.) social worker report provide an opinion of:
  
  
  
  • "Extreme" "industrial impairments; veterans is extreme disable to work due to s-ced conditions".
    
  • "severe" "social impairments; veterans s-ced conditions adversely impacted his social interaction due to sever depression, anxiety, chronic pain and medication treatment".
    

  6.) I find both Psy examiner and SW evaluation(s) contradicting each other.

  7.) examiner did not reconcile with VHA attending psychiatrist's and (PCP) Dx's of recurrent MDD, Anxiety, pain syndrome, evidence evaded.

  8.) as per remand : examiner did not reconcile with private Psy nexus opinions of MDD and anxiety with a GAF: 50

  9.) Dx's of recurrent and chronic MDD and Anxiety have been documented since 1996 to present, evidence eluded.

  I most submit a (NOD) by the th of this months, since they intentionally delay processing my C&P's report, request.

  ANY COMMENT and advise will be truly appreciated.

  lu12

[Wings]

x

x

x

Will have more time in the morning . . . hope others more focused than I will contribute! ~Wings

Appeal! Appeal! Appeal!

[Ricky]

I am jumping in here in the middle, and must ask you lu what is it that you are trying to do? If this was on a claim for an increased disability rating then technically new and material evidence is not needed. All that is needed is the fact that the veteran claims that something has changed (disability has increased) since the last renewal. This would prompt the VA's duty to assist in such an instance and no new or material evidence would be needed. No matter how may times you file a claim for an increase of a specific disability after a denial it is always a "new claim" Now if it was for a request for service connection then yes the claim would have to be "reopened" which would require N&M evidence.

Now if you are thinking of or going to "reopen" a claim today the new definition of new and material evidence applies. However, just to provide you with the correct definition of new and material -

Definition prior to 2001: New and material evidence means evidence NOT PREVIOUSLY SUBMITTED TO AGENCY decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide teh merits of the claim.

Definition after 2001: New evidence means "existing evidence not previously submitted" to agency decisionmakers, Material evidence means existing evidence that, by itself or when sonsidered with previous evidence of record, relates to an unestablished fact necessary to substantiate teh claim. New and material evidence can be neither cumulative 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 a claim.

I would have to reread some of my old holdings on the subject but I believe that the court has ruled that evidence held anywhere within the VA system is determined to "have been submitted.

Forgot to mention - the new and material evidence must also attack the reasons given by the VA during the denial or they will simply say it is cumulative - just something to keep in mind when trying to determine if your evidence is new and material.

Edited August 14, 2008 by Ricky

[Berta]

"examiner did not reconcile with the various private IMO's as per remand by the BVA"

Make that point and all other points you made when you rebutt this decision-

"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? " no but you can rebutt this statement and mention the favorable stuff.

It looks to me like you have plenty to rebutt-

was this in a recent SOC?

Did your IMos fully comply with the IMO criteria?

[lu12]

Ricky,

this is not for an increase, Feb 22, 2008 the AMC denied [2] issues and grated 30% for another issue, a rating that I definitely disagree with.

so here I go again: If ME of record and submitted prior to the new regulations pertaining to this matter; have not been rebutted nor reconcile with it as per remand, then that evidence is consider to be lost? right?

my case is at the BVA for a final decision.

lu12