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

[allan]

[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?]

NO.

VA raters have the interest of the government and bonuses for their checks on their minds. If they end up helping vets and widows in the process, well thats just how it goes. It wouldn't look right to stop all of us from getting our benefits, now would it.

VA lwas are there to look good. It doesn't mean they have to follow the laws. You'll find out that most of congress could care less one way or the other.

[VetsLady]

Allan and Shag and all who have replied,

I hear what you are saying....and know for certain it's not meant to be steered toward any one person who has posted on this topic. Most people, and I am an optimist, would not consider "doctoring up" records or submitting false evidence. What would be the reason? It all comes out later. It will always, always come around and bite the butt off that individual. It's Karma. And, I want to receive as much good karma as I can. It always comes back. Always. I have to believe that they care. If I don't, and this is just my feelings, then what is this world coming to? We should all care about each other but in the real world that isn't the way it is. It may be a numbers game with VA, or whatever their agenda is to knock claims out faster than the speed of light. The bottom line is the Veteran who incurred an injury or illness while in-service is entitled to medical care, compensation and fairness in applying the law. Why is it that so many Vets have to fight for their benefits? It's a crying shame and should not be. "Should" and "Are" couldn't be farther away from each other than Planet Earth is to the Milky Way.

On submitting anything to the VA, yes, I always keep a complete set of anything I send, and I don't send the originals. I always send them either FedEx or USMail, Return Receipt Requested. Never, ever any other way. How would I possibly know that having filed the TDIU claim with the RO that all of the evidence submitted would not be automatically sent to BVA since the Remand mentioned the TDIU claim? We did what the SO told us to do and submitted the evidence as we were told to do. If I'd thought to send a copy to the BVA, wow.....this could have been completely avoided. Bad advice from them, and ultimately it still falls on the Vets lap to make sure the evidence gets into the right hands. That's where the crack in the vase begun. Never again will I rely on advice without checking it out myself. Maybe this will help someone else down the road and they won't make that same mistake.

VARO review of the additional evidence was waived at the BVA hearing and that being said, wouldn't anything else that is submitted to AMC/BVA be considered under the same waiver? I would think so, but then I'm not a lawyer.

What's done is done and what matters now is that it's not too late for evidence to be submitted to AMC.

BroncoVet: Thanks for starting this post, I learned alot today that I hope may help someone else who happens along this topic.

I do appreciate all of the feedback. Thank you.

VetsLady

[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.

By the way,,,,I was just lucky to get started right before these real situations started for you new guys. I hate it for you,,,and I do not understand.

[carlie]

VARO review of the additional evidence was waived at the BVA hearing and that being said, wouldn't anything else that is submitted to AMC/BVA be considered under the same waiver? I would think so, but then I'm not a lawyer.

What's done is done and what matters now is that it's not too late for evidence to be submitted to AMC.

VetsLady

VetsLady,

NO - The waiver you signed at the BVA Hearing only covers the additional evidence

that was submitted at that time.

If you submit any additional evidence to the BVA/AMC, you will need to write up

and sign a Waiver of Regional Office Consideration of that specific additional evidence.

If BVA/AMC does not recieve a Waiver then by regs BVA/AMC will have to remand the additional evidence back to your RO for their consideration of this additional

evidence.

jmho,

carlie

[Berta]

"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?"

I learned long ago to never make any reasonable expectation of anything regarding the VA-

I believe the RO has sole jurisdiction over the TDIU claim and this is why the BVA referred the TDIU claim back to the original RO.As I understand this- the BVA cannot decide the TDIU claim.

I sent evidence I had gotten at the last minute to both the BVA and the AMC-

Some of it was to knock down a second recent C & P exam.

T%he AMC sent the claim to Seattle RO (I live in NY) and it was denied again -no evidence listed-

I also sent an evidence list with the evidence I sent to the BVA during this time- to make sure the BVA did have all evidence of record which I had listed in my I-9 but which had been added to considerably over the years.

And I reminded them again my VCAA letter was in violation of the VCAA.

BVA awarded. It was the first time in 6 years that anyone at the VA had read any of my evidence.

If the BVA had not awarded -I had planned a Motion of Reconsideration to file with the BVA as well as request an Administrative review.

But the BVA DOES carefully read whatever evidence they have.

I just had to make sure that the BVA had it.Since the RO ignored it all.

Carlie is right-

I never signed a waiver and should have-

I kept hinging on the VCAA violation.

BVA did not remand for this violation because they said their decision awarded the claim and the violation was not prejudicial-at that point-

because I made sure the BVA had all of the evidence of record even though I had sent it to the RO many times.

In your case:

"What's done is done and what matters now is that it's not too late for evidence to be submitted to AMC."

I would send it all to the BVA too.

I found AMC cant read either.BVA can.

[VetsLady]

Carlie and Berta....

Thank you for your input. We did receive 1 VCAA Notice on the appeal, but that was around Feb/March of this year.

I have all of the evidence the VA has not reviewed. I want to be certain I understand this correctly, you say that I should send the

evidence directly to the BVA with a signed waiver of RO review. Actually, since the claim file is in DC, it would make sense

to send it there, especially since Seattle RO did not forward it. I imagine the form for a waiver is located on their web-site

or I could just type it up with verbage that: "I, Mr. Veteran, waive my right for RO review of the evidence listed below and that

is enclosed for the review of the BVA. Respectfully yours, Mr. Veteran."

BVA remanded the claim specifically to the AMC in DC.....why not just send AMC and BVA the evidence? By way of, attaching a letter to the

BVA and AMC packets indicating they are both receiving the same exact documentation requesting the the AMC to reconsider

the claim after review of the additional evidence? AMC would be put on alert that BVA has the same evidence at hand and BVA would know that

AMC has the exact same evidence and that since the Remand was to the AMC in DC, they might be on their toes and get to it pronto like.

In a nutshell:

1. Can the waiver can be found on the VA web-site?

2.) Should I send the evidence, along with a catagory of the evidence to both AMC and the BVA?

3.) AMC currently has the file, and they have stated we have 30 days to respond. Would this be considered

a NOD of their decision, just as a new claim? I know the Form 9 is on the VA web-site but, would the letter

I have drafted and plan to send explaining why we disagree suffice? There was also a SSOC the Seattle RO

sent Sept.08 denying the 2 issues that were on the table then. We have just 1 issue on the table currently

and in the SSOC Seattle RO sent, there were numerous errors that our former SO didn't respond to - I know now

we should have. I would request in our NOD they review the SSOC from Sept., review what the doctor in the SSOC

reported and that within the evidence submitted, Dr. Private Sector stated the same thing.

The 1 issue on appeal was denied by Seattle RO - the Rater stated the QTC (VA C&P doc) was incorrect in his report,

that the layperson statement could not be reliable as it was "too long ago" - I call bs on that, the VA sc my husband on

another issue with the evidence in the file (they only had thru mid 04) and the layperson (buddy) statement and that

Buddy Statement was written 3 1/2 months later than the Buddy statement included in the issue still on appeal.

Seems odd to me that VA can say they believe a statement that was written 3 1/2 mos after the Buddy statement in the

current file at AMC.....hmmmmmmmmm? Both statements "tip the scale towards the Veteran's side", 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. There are

strong Nexus statements from both the QTC doctor and my husband's private physician and the IMO Nexus we obtained on

our own and paid for out of our pocket in Oct. 08. I would be sending evidence supporting the current condition from

mid 04 through the present. And, he was dx with a complication of his current condition by his Primary Care Provider at

the VA earlier this year. His condition will never get any better, it could stay the same or get worse, but it will never get

any better than it is right now.

Seems like an ez process to me......

Send the docs, they read the docs, they read the NOD, they see the error RO made in the SSOC from 9/08, and they sc

based on the new evidence and rate.

Case closed.

Vets Lady

My apology if this post is wordy....I really need to make this right, this time around. I don't want to have the file passed

around for another 2 years from BVA to AMC to RO to the Moon and back.