Duty To Discuss Evidence In A Refusal

[bufloguy]

I think I've done my due diligence in looking for an answer to this . . . Does the VA have a duty to discuss all evidence in a denial of benefits letter. The reason I ask is that in a recent denial letter, the RO touched on a few points in clinicians notes, but failed to discuss most of the evidence presented, which would have proven my case. I'm starting the NOD, and I am looking for any way to ding the RO. Thanks!

[akwidow]

In the last denial I received, there was not one mention of the evidence I reectly sent in. They simply said the evidence did not relate to the case.

If they do this to you, you can depend on the fact that if it is not listed in the SOC or SSOC that it was not considered in your decision. This is of course illegal, and you should immediately appeal, and IMHO sent in the evidence again and more if you have it. I sure did, return receipt.

I finally won my claim at BVA after three denials because they actually read what I submitted which gave me benefit of the doubt.

[john999]

If the VA can exclude evidence at will there is no due process. It is just a basic legal principal that you can't pick and choose what evidence you consider. If they don't list or refer to the evidence in the decision there is no way you can tell if they read it. That makes due process impossible. I think it is CUE to do this in a final claim. I am betting on it.

[bufloguy]

John,

Is it a basic legal principal, or is there a regulation or case law that I can cite? The reason I ask is that I am putting together a request for reconsideration and I want to point out all they positive evidence that they failed to discuss. Thanks!

[Berta]

If they completely failed to mention prime evidence-you should re-submit that evidence with a Request for Reconsideration. This does not stop the year NOD clock however.

If they fail to act on the request and the year's end grows near-then file a NOD.

We have 38 CFR 4.3 amd 4.6 here and those evidentiary regulations could be cited in your request.

If the evidence was specifically requested in the VCAA letter you got- then bring that point up too as -if they asked for it themselves -they definitely should have considered it.

Like akwidow- after almost 7 years the first time my evidence was read-it was read by the BVA.

John is right- the VA has made exclusion of prime evidence their MOS in many decisions.How they pick and choose those claims is what I dont get.The only way this can ever be rectified is to challenge the VCAA and have it amended to bring Duty to Assist regulations up to the level of legal error -if those regs are violated by the VA.

I dont see that happening however.

If they made a Legal error ( beyond violating the DTA regs), you can ask them to CUE their recent decision but you must call them on a serious legal error.When I did this twice since April, they rectified the legal error recently but I only had until April to file a NOD -so this too takes time to do and my decision is better but still wrong.

SOmeone here suggested we explain something regarding a SMC question without posting the regs again (which I had done to help answer the post's question.The SMC regs are intricate and high levels of SMC have to be assessed on each individuals situation and medical evidence).

I never tried to add more advice to that post.Because my advice would again have referred to the SMC regs.

The VA regulations are used against us but they also can be used against the VA and they are the

'infrastructure' of the claims process.

I wish we didnt need to know VA legalize and could always depend on vet reps and SOs to know them but that simply isnt the case

If VA in your case didnt make a legal error in the decision beyond DTA violation- and did not list as evidence or address critical evidence for your claim- you have to respond to them ASAP on that reminding them of the evidence regs in 38 CFR and re submittng what they ignored in the Reconsideration Request.

Do you have a vet rep to help or support this request?

Critical evidence is certainly documented medical evidence so strong that it has pertinent bearing on the claim.

If they ignored it completely you could suggest in the Reconsideration Request that although you sent it (attach Proof of mailing) -since it did not appear in the decision, then it probably was lost or misplaced or destroyed and you expect it to be promptly considered.

Edited March 5, 2010 by Berta

[broncovet]

I agree with Berta and John, and will add my 2 cents worth.

Whenever an evidence document you have submitted is NOT in the "evidence list" on your decision, I think it is safe to assume either 1) the document was submitted too late for the decision maker to consider or 2) the evidence document was mishandled or shredded or 3) The VA made an error and had the document but did not include it on the evidence list. I will address these seperately:

1. If your evidence document was "swirling around the post office or the VA somewhere and not given consideration", then I think you can submit "New and Material Evidence" to reopen your claim. It often takes weeks or even months for evidence you submitted to get to the right place and be given consideration, and, since the Veteran does not have a reliable method of really determining exactly where his claim is at, your claim could have been at the rater, and your evidence could be sitting in the mail room.

2. Obviously, if your evidence has been shredded, you have a legitimate "beef". You could try sending an IRIS and point blank ask them if ________ document, dated _____ is in your current C file. They will squirm, but I think this is a very valid question, in light of the recent shredder scandal. You have a right to know if some of your evidence has been shredded. If it is not in your C file, re send it to them. If it is in your C file, I think it is a legit question to ask why your _______ document was not considered in your decision dated _________. One possibility that Berta has pointed out before is to ask the VA to "Cue" themselves because they failed to consider your _________ evidence in the _________ (date) RO decision. Of course, you are entiltled under FOIA to a copy of your C file, and they may not answer your question but instead send you a copy of your c file. That is what they did to me, and wow, was I ever glad I got a copy of my cfile, because this is good evidence to shoot down their case. Every attorney I have ever spoken with has requred a copy of my c file before he even wants to decide if he will take your case or not. Since I assume you are representing yourself, do you deserve less information than what an attorney has?

In either 1 or 2 above, there is a case (or regulation) that states the VA has to consider ALL the evidence before rendering a decision. Berta and John are right on, that the VA is not allowed to pick and choose which evidence to consider. Can you imagine a decision that states something like, "we did not consider your doctor's evidence because we are convinced you dont deserve any benefits, so we just decided to deny your claim based on this other evidence that supports our 'denial theory'"

3. If the VA made an error by not listing your evidence, but had that evidence in their possession, you have a basis for a CUE claim, IMHO, based upon a VA violation of the "consider all evidence" point of law, AND the legal point that the VA is required to give "Reasons and basis" for your denial.

Edited March 5, 2010 by broncovet

[bufloguy]

Thank you all for your advice and comments. I'm feeling a lot more confident about my chances for a succsuffuly ask for a reconsideration. I've requested my "C" file over a month ago, so I should have it soon. Thanks again!