***** Berta *****

[carlie]

Berta,

Please see if I've explained this right.

Thanks,

carlie

http://www.hadit.com/forums/index.php?show...mp;#entry108612

[Berta]

Someone  is reading this older post _ I succeeded in getting my husband;s death Directly SCed

due to AO DMII and AO IHD. 

That is what gave his death by VA, Peace with Honor- I have Peace with Honor now too- I cant believe how popular the Sh-tlist thread is-

sme of th suests might be from the VA, or even OGC

Edited March 8, 2022 by Berta

[john999]

Berta

 

           Your winning for your husband was a great achievement!  Your discussion of new and material evidence is so important.  It can take years for vets to figure this stuff out on their own.

[Berta]

Thank you John-

The threads in this post and other posts here are all messed up- I hope the MODs fix them.

[Berta]

VA sees it this way-

Cummulative evidence is evidence that reflects what they already have- it is redundant evidence-

New and material evidence is evidence they have not considered before and that is not repetitive of what they have-

Maybe my AO claim is example.

In 1998 the VA stated they caused Rod's death.

They did not raise the issue of his AO exposure and neither did I .

When I re-opened my claim I stated the VA killed Rod as an established medical and legal fact and that I was re-opened for a direct service connected death decision.

If I had attached all the Sec 1151 and FTCA and medical stuff from VACO at time of that decision-the VA would have said this is redundant and cummulative.

I had to be specific.

So I attached with the initial claim some of the medical records that showed a VA doctor was considering ruling in or out diabetes.

Diabetes mellitus is AO presumptive.

I also attached as evidence Chem Lab reports of abnormal glucose readings.

I also testified as to what this doctor had told me and Rod at the time as to his potential diabetes diagnosis.

All of this was 'new and material" as the VA had never considered these points before in my older claims.

They admitted to "multiple" misdiagnoses and my claim was to prove the major diagnosis they missed that caused his conditions upon death.

None of this was redundant.

I used the same clinical records, of course,

but the continuous stream of evidence I sent them,to include the 3 IMOs, was not in any way a duplicate of the premise of my initial claim.

I used statements from the FTCA stuff and the prior Sec 1151 award for DIC in a new way- to support a new claim-

on an entirely new and different basis.

I also made sure that since Dr. BAsh had prepared 2 IMOs that the VA could clearly comprehend that the second one was not cummulative nor redundant to the first one-

meaning each IMO was different and could stand on it's own.

I had also a brief statement from Dr. RAbiee (the sole VA doc who had a clue)who I had searched and found in California in a private practice-

I got this statement prior to talking to Dr. BAsh and Dr. BAsh loved it- and incorporated it into his IMOs after contacting the former VA doctor himself.

Dr. Rabiee's statement was neither cummulative nor redundant and it supported his past entries in my husband's VA medical records and the conversations I and Rod had with him.

The BVA recently agreed these are not cummulative or redundant- none of my pther medical evidence was either and ordered the VA to do what they havent done since Feb 2003- to read it all.

BVA decisions reject anything that is cummulative as it has already been addressed by the VA or simply just says what has already been said.

If the VA lists a piece of evidence in a SOC and then fails to address it at all in the narrative I feel the vet should send it in again- as new and material- to their claim.

But I dont know if this would work in every case-

In my SOCs etc, not a single piece of my evidence was ever considered in the narrative and the IMOs were totally omitted from them.

"New evidence" what they have not seen or opined on before

"material evidence" evidence that is relevant and important to the claim.

[Berta]

PS-medical abstracts and treatises can be new and material evidence.

It depends how probative and relevant they are.

True case-

widow denied DIC many times.

widow finds an internet printout of the fact that a small population of Koreans in a small village (where her husband was stationed) had an extremely high incidence of a rare form of cancer.

The veteran had died of this rare cancer.

The VA considered her medical abstract of this cancer as new and relevant.She was awarded DIC.

The veteran had no other known possible etiology (and VA couldnt find one) but for his presense in service in the small area where this rare cancer was prevalent in Korea.