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

[VetsLady]

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.

You hit that one spot on John999. I wonder about the Veterans who have no one to help them. I can only hope that my experiences will help someone else on their own claim. The Vets who don't have someone need a voice too.

BTW, I have a fairly large shovel I'm digging with. I think our former VSO was using a child sized beach sand sifter, not even a shovel.

I await advice and input.....

VetsLady

[Pete53]

Even though you have an SO you still call the shots and you can ignore them if they are useless.

[VetsLady]

Even though you have an SO you still call the shots and you can ignore them if they are useless.

We dropped them like a hot potatoe when it became apparent they were useless and I could do a better job....afterall,

we have the vested interest in a positive outcome. Not to say all SO's are useless, this particular SO was. We waited

until after we received the Remand to drop them.

Seriously, the former SO suggested we file the TDIU claim - wrong move during a pending appeal. It clogged the appeal

action like grease in a drain. How would a Veteran know? We trusted them to know. The woman who went into the hearing

with us had never met, spoken to or read my husband's file, let alone, she didn't even have it during the hearing and was going on

the evidence WE brought to the hearing that I sent to the SO more than 1 month prior. Sent via CM/RRR. And, to top it all

off - she was late, arriving 5 minutes before the hearing was called to order by the VLJ!

I heard through the grapevine that she is now working as a SO for homeless Vets. I hope and pray she has her act together now

as they definetly need a voice and does take a "special someone" to work the streets on behalf of way too many homeless Veterans,

just as it takes a "special someone" to do the Veteran that walks into a SO office or, that offers assistance to Veterans online.

I applaud those who do right by the Veteran. Perhaps one day I would do the same as I would be very interested in doing so but, with

my husband's current health conditions, it's enough for me to care for him and work his claim. Oh yeah, and take care of me too!

VetsLady

[akwidow]

Yes, mine has been useless most of the time. The only time MOPH helped was when they decided on their own to write the brief that got me the remand at Appeals court.

Upon reading that appeal, I see that now I COULD HAVE WRITTEN that appeal, but not at the time. I plan on using some of the words of that lawyer in my reply to the SSOC, since AMC didn't do what the were supposed to do.

We have VSO offices here in my small town, and I plan on using my knowledge to help another vet after my battle is over.

Blessed be whose who never give up.

[VetsLady]

BroncoVet...

I re-read your original post and see you have included what I'm looking for.

Any other suggestions....feel free to post.

Thanks,

VetsLady

[VetsLady]

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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.

(Authority: 38 U.S.C. 501, 5103A(f), 5108) ( :) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304( B) (1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

Bingo. I knew I'd come across this CFR before. They have to include the evidence in the appeal decision. I've got the draft done and will copy the records they need to make a correct decision. The appeal period has not officially expired since we still have the 30 days to respond before it goes to the Board for final determination. However, I do believe if AMC reviews the missing evidence they will reverse their decision and rate him right then and there. The claim(s) that were pending at the beginning of the appeal period were 3 issues. 1 was resolved. 1 was dropped and 1 is the current issue at hand.

If, anyone can point me toward a direction that this CFR would not apply in our case, please let me know.....

Thanks!

VetsLady

Edited November 9, 2009 by VetsLady