"new" Evidence

[darius]

What constitutes "new" evidence in a NOD? For instance, if my C file indicates the C&P doctor's medical opinion, and then the VA evaluator did not use all of it, can I cite the C file as "new" evidence? Also, does the evaluator only rate you on what you specifically filed for? Or, if the C&P doctor, in my case, a TBI specialist, indicates many problems not formerly in my paperwork, but directly caused by the head/brain injury, do these have to be claimed formally to be rated?

[Pete53]

New evidence is used to reopen closed claims otherwise although new it is medical evidence that proves your claim. Be very careful how you use it,

I would submit it as additional medical evidence to prove my claim unless I had an old claim that was closed.

Good Luck

[carlie]

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the 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 the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

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

[darius]

Okay. Thanks. To be clear, if the one-year has not elapsed, then "evidence" within the C file (i.e., the C&P doctor's notes) can be cited and used to argue that the evaluator did not use all the available information available.

[carlie]

Depends on the evidence as to if it is cumulative or redundent.

jmho,

carlie

[allan]

TBI specialist, indicates many problems not formerly in my paperwork, but directly caused by the head/brain injury, do these have to be claimed formally to be rated?

You need to have the TBI specialist state they are secondary health issues from the TBI and file claims for them.

You can get consideration only for what you file for. Don't forget to include how the medications effect your daily living.

As far a evidence goes. The VA rater picks and chooses what evidence to grant any weight to, regardless of the law. Thats how they play their game. So make sure any statement from a Dr is worded strong.

Even than they may just ignor it if it can get their bonus through any faster.

Edited September 25, 2008 by allan (see edit history)