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

[Berta]

I am a little lost here-

as to what the claim is for-etc- but on some antibiotics so I feel looopy-

All I can suggest is to send the evidence to anyone ---AMC,BVA, etc- so that the chances of getting the evidence read gets higher-

"they didn't have all

of the evidence in the file for the DM2 claim (that was sc in 4/08) and they don't have all of the evidence now"

I dont understand- he got SC for DMII and then they took that SC away?

If the buddy statement was for PTSD stressor-was buddy in same unit at same time and place of the stressor? DId he make that clear in the buddy statement and give an eye witness accouint of the stressful event?

[carlie]

VetsLady,

Here's an example for you.

Hope this helps a vet/VA claimant.

carlie

http://edocket.access.gpo.gov/cfr_2009/jul...8cfr20.1304.pdf

§ 20.1304 Rule 1304.

Request for change in representation, request

for personal hearing, or submission of additional evidence following

certification of an appeal to the Board of Veterans’ Appeals.

© Consideration of additional evidence by the Board or by the agency of original jurisdiction.

Any pertinent evidence submitted by the appellant or representative which is accepted by the

Board under the provisions of this section, or is submitted by the appellant or representative in response to a

§ 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction

under § 19.37(b) of this chapter,

must be referred to the agency of original jurisdiction for review,

unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral.

Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing.

Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.

[VetsLady]

VetsLady,

Here's an example for you.

Hope this helps a vet/VA claimant.

carlie

http://edocket.access.gpo.gov/cfr_2009/jul...8cfr20.1304.pdf

§ 20.1304 Rule 1304.

Request for change in representation, request

for personal hearing, or submission of additional evidence following

certification of an appeal to the Board of Veterans' Appeals.

© Consideration of additional evidence by the Board or by the agency of original jurisdiction.

Any pertinent evidence submitted by the appellant or representative which is accepted by the

Board under the provisions of this section, or is submitted by the appellant or representative in response to a

§ 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction

under § 19.37(:) of this chapter,

must be referred to the agency of original jurisdiction for review,

unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral.

Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing.

Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.

Thanks Carlie....I'm wiped out from brain fry today. Thanks for the clarification. Basically then, we can send on the additional evidence to AMC and the BVA, add a NOD to the AMC decision and request the new evidence be reviewed and the claim reconsidered. I tried to find a "Waiver" on the VA web-site to no avail. The NOD is contained within the body of language of the cover letter we will submit.

Berta.....I hopy you are feeling better. I've had major bronchitis the past 2 weeks, on antibiotics, codeine for the cough at night and taking care of my husband's needs. It's alot for one person.

Thank you to everyone who offered advice, I really do appreciate it.