New & Material Evidence?

[Rockhound]

Can prior evidence, used in an unappealed claim, that was denied, be used in a new claim to reopen with new and material evidence, when you have new and material evidence and by it's very nature, this new and material evidence makes this prior evidence, used in prior claims, material to the new claim?

I know for a fact that a lot of the evidence used in prior claims that were denied, are a part of my C-file and although this prior evidence was not deamed, either sufficiant to win these prior claims and/or was found not new or material to reopen a new claim, with the new evidence I have now, this prior evidence now becomes material to show that the problem happened in service, the medical and personal history since then shows continuity of treatment and symptoms, and current medical findings show that the problem persists and is ongoing.

I hope this makes since to all of you. I get confused when the VA talks about evidence having to be new and material in order to reopen a claim. Does it matter at all, that besides the one bit of new and material evidence, that the rest, if not most of your evidence has already been used in prior claims?

Rockhound Rider B) :P

[poolguy11550]

Can prior evidence, used in an unappealed claim, that was denied, be used in a new claim to reopen with new and material evidence, when you have new and material evidence and by it's very nature, this new and material evidence makes this prior evidence, used in prior claims, material to the new claim?

Rockhound Rider B) :P

Rock- Yes is your answer. If the evidence is new and material to the specific claim in question, then you can successfully re-open the claim and have all evidence of the record new and old alike weighed to make a decision. The trick is the first stage of this legal maneuver and prove the new and material aspect. Once proven to be so the next step in the process to weight all evidence like an original claim.

[Berta]

I agree with poolguy- but it depends on what the evidence is and how it has become probative to the newer claim.

Ve describes new and material evidence thus:

"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."

Material evidence is the key here-

what evidence that the VA might have opined on and rejected in a past decision (when it was New evidence)could become 'material' to a different and newer claim.

Say a vet gets SSA for a disability he claims is due to service but the VA denies the claim.

Years later the vet re-opens the claim with an IMO (New Evidence)for service connection of the same disability and the VA service connects his disability based on the medical rationale and how the IMO doctor connected the dots to his SMRs.

The SSA award ,which was not relevant to the initial denial-as long as it is still a current SSA award-

would be "material" to the rating that the VA determines in the re-opened claim.

If the vet had also filed for TDIU along with the IMO to re-open- then Box # 18,of the 21-8940 ( if checked Yes)

or if the veteran specifically raised the SSA award issue in the re-opened claim,that should trigger the VA to reconsider the SSA award as it would be not 'new' but highly relevant and material to the proper rating.

New and material evidence cannot be,per VA, redundant

or accumulative.

But what might appear on the surface as redundant or accumulative, can also become relevant due to other circumstances-and thus become Material evidence.

This also is why I always suggest saving all past SOC, SSOC etc.

A SOC could contain VA's evidence that was used to deny a claim but then this same evidence (or part of it) could become relevant and 'material' to a subsequent re-opened claim.

[john999]

Rock

Here is what I got from my lawyer. If we can establish that the VA made a CUE when then excluded material evidence from their decision then we can have them reweigh all the evidence. The CUE comes first, and it cannot be based on reweighing of the evidence, but after the CUE then the VA must reweigh the evidence to make a new decision. I know you are talking about new a material evidence opening up a claim, but the pricinpal is the same. You have to be able to reopen, and then you can get the VA to reweigh evidence they had before but dismissed. This is how I understand it. If, for example, the VA denies my CUE then they don't reweigh the evidence.

[Ricky]

Rock - if you have just one piece of new evidence and the VA determines that it is material and reopens your claim then they will once again review the file and all evidence associated with your claim.