Do You Still Have An Exam If The Va Does Not Service-connect Your Claim?

[pilgrim01]

What I mean is if you file a claim, does the VA determine if it is service-connected before you have an exam or after? It seems that it would be a waste of money on the VA's part if they send everyone for an exam and the illness is not service-connected. What do you all think? Thanks!

[carlie]

No, you have that backwards. The VA doesn't have to give you a C&P exam if your claim isn't well grounded. It's up to you, the claimant, to have a well grounded claim. The VA does often give C&P exams anyway to cover their tales but it's their option if your claim isn't well grounded. The well grounded part is your responsibility, not the VA's.

Jay

CRYPTOTECH,

VA no loger has a well grounded claim requirement.

carlie

[CRYPTOTECH]

It's been a while so thank you for correcting me on that.

Thanks, Jay

CRYPTOTECH,

VA no loger has a well grounded claim requirement.

carlie

[Hoppy]

This is my take.

Pilgrim, I try to answer your question in simple English at the bottom of this post.

There is a difference between “new evidence” and “new and material evidence”. “New and material evidence” is required to re-open a claim that has been denied and closed. For the purpose of not confusing the legal requirement I call evidence submitted in support of a claim that is open “new evidence”.

The evidentiary standard that is being used for evidence that can lead to the scheduling of a C&P on an open claim is covered in 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159©(4). McLendon v. icholson, 20 Vet. App. 79 (2006). (The criteria is covered in my previous post on this thread. To summarize: the evidence indicates an association or may suggest a nexus.

The evidence necessary to re-open a claim is covered by the following:

Under 38 C.F.R. § 3.156(a), evidence is considered “new” if

it was not previously submitted to agency decision makers.

“Material” evidence is evidence which, 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.

38 C.F.R. § 3.156 (2008).

For the purpose of determining whether a case should be

reopened, the credibility of the evidence added to the record

is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513

(1992).

When trying to interpret the differences between the requirement to schedule a C&P for a new claim and to re-open a closed claim I struggle to understand the difference in the language. It looks pretty much the same to me. The requirement for new and material that it must raise a reasonable possibility of substantiating a claim is pretty similar to the requirement for an open claim that the evidence indicates an association or may suggest a nexus. Both are pretty flexible in assigning an authoritative interpretation.

According to the VA in 1999 less than one out of a hundred cases that were denied without a C&P were later overturned on appeal. The congress either did not like the VA’s method for collecting stats or they were not impressed and the congress passed the VCAA to take the decision on medical merits away from the adjudicators. There are many who feel the VCAA changed nothing and it is business as usual.

Under the VCAA (2001) the VA is supposed to schedule a C&P for a new claim when there is a post service diagnosis and the veteran contends there was an in-service condition or event that is related. Since the VCAA the courts have continued to make decisions that can be said to clarify or interpret the VCAA. The decision I posted concerning the duty to assist by scheduling a C&P was made after 2006. Personally, I feel we are almost back to square one. The language being cited in recent decisons on the duty to assist is pretty vague. I guess the real test would be if the DAV or somebody big time could publish the comparison ratio of claims being adjudicated without a C&P prior to the VCAA and after the VCAA.

Pilgrim,

The adjudicator can determine if there are non medical reasons that would preclude the need for development of a claim. If the veteran was not on active duty status, the veteran had a bar to benefits due to the character of discharge etc. A problem occurred when it comes to medical evidence. Adjudicators are not doctors and they make mistakes on medical determinations. Adjudicators are known to drift into medical determination and might say that there is no in-service diagnosis of the condition claimed. These decisions are sometimes overturned because the veteran points out that the rater erred. Considering that adjudicators were not doctors the congress was less concerned with the monetary expense and wanted the decision to be accurate the first time around and wanted the raters to schedule a C&P if there was a current diagnoses and a contention by the veteran that it was related to an in-service condition or event.

As far as I am concerned you should get a C&P. However, C&P’s can be bogus. Hang around hadit. I really like to help with back claims and psych claims. There are other knowledgeable folks here who also have battled these types of claims and won.

.

Edited May 30, 2009 by Hoppy

[pilgrim01]

Thanks, Hoppy!