List Of Evidence

[Jayg]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

[john999]

Getting back to what JayG was asking about I think he should do nothing else until he gets his decision. Anything he does not will just slow down the decision. Get the decision and then start looking for flaws in the rating. Until the VA decides something there is nothing you can do that won't slow it down.

[carlie]

Ditto on John999's last post.

carlie

[Jayg]

Getting back to what JayG was asking about I think he should do nothing else until he gets his decision. Anything he does not will just slow down the decision. Get the decision and then start looking for flaws in the rating. Until the VA decides something there is nothing you can do that won't slow it down.

Yeah that's pretty plain. It just sticks in my craw that they rated it then took it back. THAT is what's making me want to bo after them. Then too, I'm ready to dump this into an attorney's lap. After 5 years, I'm tired. But I have to have a decision, some kind of a decision, ANY kind of decision, before I can go on. At this point, I would almost welcome another phoney baloney denial...

Concerning the twist this topic has taken from my initial posting, if it is beneficial to some other vets, so well be it. I don't have to have joy of it for it to be a success. Just as long as some good has come from it.

[john999]

JayG

Waiting is the hardest part. That is why some fail because they can't wait. Do it by the numbers. It is inhumane to make a vet wait five years, but this is where we are at. They know what they are doing at the VA by making us wait years. Some will die, some will give up and some will prevail.

[Hoppy]

Akwidow, did the VA recognize the validity of the stressor at the time of the denial of your late husbands PTSD claim? Read the last paragraph in my post

Broncovet, this is my answer to the question you asked Berta

In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule. That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision. Accordingly, as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision. The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.

In the above decision they basically say the evidence that is in the VA's possession at the time of the decision will have been deemed to have been in the record at the time of the decision.

It sounds to me like what they are saying is that if the evidence is date stamped prior to the decision then it is considered to have been part of the record used for the decision whether it is listed on the decision or not. When I get the time I will search around some BVA decisions. I'm pretty sure I recall BVA decisions interpreting that evidence that was not listed in the decision is not assumed to have not been considered or given weight if the evidence was date stamped and in the file at the time of the decision. What is interesting about the Bell decision is that the last line refers to the General Counsel.

It appears that the General Counsel may have decided to help the BVA interpreted this decision differently than the way it was being handled in the 90s. When I came on hadit in 1996 I am sure that the BVA was throwing out CUE claims based on the failure of adjudicators to list evidence and it was determined that the evidence was date stamped and in the file at the time of the original decision by citing the Bell decision. The determination under Bell that possession of the record is equated to the record actually been before the adjudicator could easily be interpreted to mean that if it was date stamped before the decision then it is assumed that the evidence was given weight. Like I said the BVA was using Bell to deny CUE claims that were based on the failure of the rater to list or discuss evidence on the decision. The General Counsel's finding appears to have somewhat modified the way Bell is being interpreted by the BVA. That would be good because raters could just fail to list and discuss slamdunk evidence and hope the veteran didn't appeal. Then later the veteran had no recourse after the claim had been closed to reestablish the original claim to.

I have argued open cases where CUE was not an issue where the evidence was not listed nor was addressed in any discussion or logic in the writeup of the decision. It can be argued that the evidence is relevant and it's absence in the logic or discussion of the decision does not meet VA standards. Basically, what it looks like to me is that the General Counsel may have interpreted the Bell decision a little differently and if a later decision overturns a previous decision in which evidence was date stamped prior to a decision and that evidence was later determined to be so compelling as to cause a different outcome then it can be argued that in the absence of it being listed or discussed that the adjudicator overturning the original decision can determine that the original adjudicator failed to even consider the evidence and thus it is a CUE. In other words if the original decision did discuss or list the evidence then the rater overturning the original decision would most likely be limited to viewing the issues as a matter of weight which was given to the issues. However, if the evidence was not listed or discussed then it can be argued that there is no way to determine that weight was given to the evidence at the time of the original decision.

I have seen cases where the VA adjudicators get real sloppy in the way they list and discuss medical evidence especially in PTSD claims. PTSD claims are considered by many VA adjudicators to be a two-step process. The first process is to verify the validity of the stressor. The second step is to relate the stressor to a diagnosis. As such many adjudicators will not consider or give weight to medical evidence until after the PTSD stressor is determined to meet VA standards. I've seen many remands where the BVA instructs the RO not to schedule C&P exams until after the stressor has been determined to meet VA standards. In these cases they often fail to list medical evidence on the original decision or give proper discussion to the medical merits of the claim. The failure to list the medical evidence would have nothing to do with changing the outcome of the claim because PTSD stressor had not been established at the time of the original decision. Remember CUE claims are multistep process.

[Berta]

Thanks Hoppy-spunds like you did a Very good job answering Broncovets question-

I miss stuff here-time is limited----

Bell- I used Bell in my 2004 CUE claim.

In 1997 the OGC awarded me settlement and their internal medical report clearly defined some of the malpracticed conditions.My husband was eligible for SMC accrued due to these conditions.

By the time I got the Sec 1151 DIC award-the VA never mentioned SMC nor did they mention it on an award for accrued benefits I received the same week they awarded the FTCA money.

My rep mentioned that it was odd they didnt award SMC but then just shrugged his shoulders- he was happy with the decision because he didnt have to do anything to get it-I had just given him my POA and the 1151 award came through.

In 1997 I sure didnt know what I know now.

I filed A CUE on their old decision as to the lack of SMC consideration in 2004 and have continually supported it with legal evidence.

The new SC death award had rendered it moot I think because they have to make a SMC award now anyhow.

Still I rattled off Bell to them.

The VA OGC knew of the 1151 SMC disabilities prior to the RO knowing of them.I even sent the entire Medical report to the RO before they awarded the DIC for 1151 .

The problem I foresaw was VA could say on the accrued award that they were unaware of the 1151 disabilities as the report was done the same week by docs at VACO.

Still Bell says what is in VA's possession regardless of what VA and where-to include VA OGC-

is the evidence of record.EVen whether a RO didnt have this evidence but someone at VA did.

At least I think that is what it means.