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

[shag]

To anyone researching "Benefit of Doubt".

Please remember that there are many, many situations when

"lay" evidence won't be considered one little bit.

Example: Lay evidence

My wife wrote the VA a letter stating that ever since I felt I

had broken my toe in AIT - I have walked with an abnormal gait.

This Lay evidence,on it's own, more likely than not, will not be

afforded any consideration in the rating decision.

In some situations,there is specific medical evidence,

that will not be afforded any consideration as evidence, in the rating decision.

Example: Medical evidence

My new PCP wrote in a progress note, that I have a Hearing Loss

and bilateral Tinnitus that is related to noise exposure and acoustic trauma

from active duty.

This Medical evidence, on it's own, more likely than not, will not be

afforded any consideration in the rating decision.

It should be enough to help get you a C&P examination from Audiology.

I feel the most important factor to be considered, for the VBA

to apply the Benefit of the Doubt reg is that the evidence must

reach a state of relative equipoise.

If this occurs, then the benefit of the doubt rule should be applied.

It is important to study what type of information and from whom,

will actually even be considered as legitimate evidence that will be

afforded some weight by the VBA.

I have seen some VA claimant's work hard on obtaining evidence that in the end,

when it got to the decision maker, did not even begin to count as probable

or credible evidence, and did not have any weight afforded to it during the rating

process.

jmho,

carlie

[allan]

Vets having claims on appeal should never send evidence to a VARO or NSO alone.

Always fax & send hard copies(certified/returned receipt) to the BVA/AMC & one copy to your rep if you have one.

Never send the original. Always send copies.

In my situation I've found out the process can be sped up by signing a waiver of new evidence review by AOJ/VARO. Often the AMC/BVA will just remand it back to a VARO to review the new evidence once they recieve it, without a signed waiver. A two year process.

Since most VARO raters can't find their butt with both hands, the more you keep it in the hands of the BVA, the faster the appeal will get processed without the same, repeated errors the VARO's make in regards to evidence.

Im not saying you won't recieve evidence errors from the BVA, but eleminating the RO level of review can shave yrs off the process.

[shag]

I really just have a question considering all that has been reported on this and other blogs. Let me preface this with,,,,I do believe that SOME people care at the VA......That being said,,,,,the question is: Do you "Really" in your heart of hearts think that the majority of these folks are interested in following the laws set up for veterans? I don't know,,,,,it's like my faith...I can only hope and pray that they do...There are vets though,,,who, according to some of the posts here,,,have sent requisite material and it (got lost, wasn't considered, misplaced,,,,etc.) Now just one more question,,,,,since we are all vets,,,,,What do you think would happen if you were handling records like this when you was on active duty? I don't think most of us would have to think very long to know the CORRECT ANSWER. Is it the same government, under some of the same management that was on active duty? What happened? LL

[shag]

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?

[shag]

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

And which planet are you from, where logic is king? Please read my earlier post......If you can answer the questions,,,please post them so that I can understand.

[shag]

For those who cannot figure out the answer to these questions,,,,,the answer is: Lose a record,,,,your butt is grass and a fine and halfway to the monkey house. Misplace a record,,,,,your butt is grass and a fine and loss of freedom and halfway to the monkey house. Misrepresent something or falsefy a record ,,,,your butt is grass and halfway to the monkey house. Hide a record in a drawer ,,,,,,,your butt is grass and a fine and halfway to no freedom.