Va Must Consider All Evidence

[broncovet]

I am including the regulations requiring the VA consider all evidence, to cite, if necessary to win your claim. This would apply to "shredded evidence", because, if evidence were shredded, then the VA would not consider it. This is from Nova vs VA Secretary decided May, 2003

We conclude that § 3.304(f) does not conflict with 38 U.S.C. § 5107( . Section 5107( ;) , entitled "Claimant responsibility; benefit of the doubt," provides:

( :o Benefit of the Doubt.—The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

38 U.S.C. § 5107( :P (emphasis added). Section 5107( :D provides that the VA must consider all information and lay and medical evidence of record in adjudicating a claim for veterans benefits and that "[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." Id.; see 38 C.F.R. § 3.102 (2002) ("The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions . . . .").

Edited November 9, 2009 by broncovet

[Vync]

The army dentist falisifed my record by not entering a DX in my record. He told me I had TMJ, but that is was incurable. He said they would have to put bolts in my jaw and I would look like Frankenstein. In the record he only wrote "examination". He lied to me because he knew I was on a levy for Vietnam. Treatment would have delayed me getting to Nam on time. I was 19 and believed that doctors would not lie. How wrong could I be?

John,

That's pretty awful. Did your ETS physical note any TMJ problems?

When I was in the service, I never cared much about reading what was written in my treatment records until I saw this German doc who worked on base at Landstuhl hospital. The guy really did not seem to give a crap about anything. After that, I became curious and then came back to see someone else for a second opinion and actually get the care I needed.

[Pete53]

Benefit of doubt includes the phrase when all medical evidence is equal, That is why an IMO is so important

[VetsLady]

How would the BOD rule apply IF the evidence was submitted in support of a TDIU claim at the RO when the main file was in DC with the Board. The TDIU claim was denied, the development of the Appeal was begun after the TDIU claim was denied as per instructions from the VLJ. RO had two separate claims folders set up for the Veteran, 1 temp for the TDIU and 1 main file that was in DC.

If the Veteran submits all of the evidence to the RO and RO doesn't forward the evidence to DC to be included with the main file, who would really be responsible and wouldn't this be considered "evidence of record"?

RO has the evidence, appeal went to AMC who denied the claim based on the "evidence of record" - however, "all of the evidence of record" was not available to the rater at AMC who denied the appealed claim.

Would it not be a reasonable expectation that RO would forward the temp file and it's contents to DC to be included in the main file? Seems a little bassackwards for RO to wait until the main file returns to include the evidence in the temp file. Seems logical that if evidence is submitted by the Veteran then it's evidence submitted to the Secretary and should be considered.

The Veteran is of course my husband, and we have 30 days to respond. The white envelope came last week and none of the evidence that was submitted to RO was included in the evidence considered section.

Needless to say, we were stunned. We had every reason to believe that RO would have sent this file and, had we not, I would have definetly forwarded to the Board immediately, which would have been several months ago. If evidence is submitted to the RO wouldn't it be considered to have been submitted to the VA, including the Board?

What to do......need advice.....

We had BOD rule apply in a former claim as we could prove my husband set foot in Vietnam (he was stationed as a Marine onboard a ship along the DMZ that pulled into DaNang several times for top secret meetings and this is where he had to disembark the ship. The evidence of record on the VA side didn't show the ship ever pulling into DaNang however.......with layperson statements, a map that came from the ships official "scrapbook", photographs of the ship in the Harbor and my husband on land with the CO, it was considered equipose and they could not deny the claim.

I get the equipose in this situation but how can it be applied in the RO/Board situation?

Update: *** I am now drafting our response to the AMC and it suddenly occured to me that the Remand specifically mentioned the Veteran had filed a TDIU claim and referred the TDIU to the RO for adjudication. So, would it not be a reasonable expectation for the Veteran to take for granted that the Board and AMC are aware of the pending TDIU action and would associate the temporary claims folder for the TDIU action with the main claims folder that is with the AMC?

Edited November 9, 2009 by VetsLady

[akwidow]

I hate to disappoint you, but the same thing happened to me within a week of your occurance. They did not consider any of my listed dot by dot evidence either. My remand was for BOD as well. - _ have evidence back to 1968 in my case...and I am fixing to use it against them. (They of course, sent me that evidence, so I know they have it....)

[john999]

Why should spouses have to become Sherlock Homes to win a claim of DIC or win one for their disabled spouse? It is really remarkable what you all have done with your detective work. If you keep digging you will win. The factor that works on you is time. No one at the VA is worried about time. People live, and die but the VA just goes on its merry way.

[VetsLady]

akwidow....

I appreciate your response. I'm not disappointed as there is a 30 day period of time to submit the evidence that the RO obviously didn't forward to AMC. If they had, it would have been listed in the evidence portion of the SSOC we just received. There were errors in the SSOC denial for sc we received in August 2008 and they should have been addressed at that point by our SO as requested and they were not. Regardless, it's up to the Veteran to provide the supporting evidence to the VA or how would they know it even exists? The assumption that the claim would naturally progress through the appeals process and the errors would be corrected was a reasonable expectation on our part. Wrong. If anything, I should have sent a NOD of the Sept. 08 SSOC, and had I known now what I know now, I would have done just this.

I was also advised that if you have a SO going into an appeal that you can't drop the SO until the appeal is past the Board's videoconference. In caring for a chronically ill husband, it's very easy to believe your SO will handle the situation and not realize the fact that it's really up to the Veteran. My primary focus was the care of my husband and if I erred at all in the process of his claiml, it was my assumption the SO would handle it.

In the meantime I have drafted a rather specific NOD to the current SSOC from AMC as we have those 30 days to respond and why. This is a very clear claim that should be sc and it has fallen into the cracks of the unknown, very specific errors were made in the Sept. 08 SSOC, and the AMC were not afforded the entire file to include all of the evidence we submitted in Jan. 09 for review. Lay person statements were admitted into the portion of my husband's claim that has already been sc, however the lay person statement written 3 1/2 months earlier for the appealed portion of his original claim were not allowed. How could they accept the layperson statement writtten in Dec. 04 that actually ended up being the slice of pie that sc him for a portion of his original claim and the layperson statement written in Sept. 04 not be allowed into the evidence as it was "too long ago to be accurate".

There were originally 2 issues on appeal, we dropped 1 because we received a more probable diagnosis than PTSD and how in our heart of hearts could we claim PTSD when in fact it's not the correct diagnosis.

If anyone has any input regarding a CFR or additional thoughts to be sure that I include in this NOD, please let me know. I believe that once they receive and review the NOD and the reason's why we disagree, they will sc my husband on the appealed portion of the claim. The original claim was filed in 2/03.....almost 7 years later. I know there are many, many Vets whose claims are older and I feel for them/you as I know you feel for us.

I appreciated whole heartedly any advice.

VetsLady