Shade V Shinseki

[Berta]

The new 2011 VBM has detailed discussion on the CAVC Shade decision of 2010.

The veteran, Mr. Shade, who claimed a skin condition from service , had been denied at the RO level when he attempted to re open a claim he had been denied for in 2002 due to lack of current diagnosis and nexus.He had submitted medical evidence that stated he had a “chronic dermatitis that had been present for years.” Since there was no nexus statement the BVA in turn denied his claim.He appealed to the CAVC.

The decision is important and NVLSP narrowed it down to it's most important facet.

Although a Federal Circuit court had overturned part of a CAVC decision n Hodge, this caused an amendment to Duty to Assist ,38 CFR 3.156 (a) to occur in 2001. But the circuit court felt that the new definition of “new and material Evidence” was more restrictive than the prior regulation.

What Shade V Shinseki does ,per NVLSP, is clarify that new and material evidence needs only to “address one reason” for the denial in order to trigger VA to re open the claim.Even if the VA came up with more than one reason to deny. The standard for any new and material evidence is that it “raises the possibility “of substantiating the claim.

Shade's medical opinion was lacking in the proper criteria for IMOs that we have here at hadit.

But still the CAVC felt it was enough to potentially substantiate the claim and the right to re -open was granted.I assume the BVA had to vacate their decision (have not read Shade yet( and that would allow Mr. Shade to provide additional evidence such as an IMO with a nexus statement possibly from the same doctor to attempt to finally succeed on his claim.

NVLSP gives another example:

Vet is denied for depression as the VA examiner said he or she had suffered an “acute situational reaction” in service and did not have a chronic disability.Years pass and the vet decides to try to re open the claim.

The vet then submits a nexus statement from a doctor.

This is enough for the VA to re-open the claim as it is new and material evidence.

As NVLSP suggests the current IMO could possibly mean there would be no need for an additional CX & P and the new IMO could award the claim.

VA has stated many times to veteran's that they have submitted evidence that is redundant or cumulative (meaning too similar to what they already received )but this evidence could always be potentially punched up a bit to fall into N & M criteria to support a reopen of an old claim.

Edited September 7, 2011 by Berta

[john999]

One thing this says to me is that if you have a condition that is SC or you believe is SC get a doctor and keep him/her. This way this doctor can testify to the chronic condition of this disability. Plus, long term doctor/patient relationships usually produce good medical reports. A doctor who has been seeing for you 20 years knows you, and knows you are not just doctor shopping for an opinion.

[broncovet]

The VARO's "restrictive" position on reopening based on N and M evidence is similar to their other "restrictive" positions. A good example of this is the VA makes us think that each facet of the Veterans testimony has to be "corroborated". This is not true. The VA can not reject the Veterans testimony based solely upon the fact that he is an "interested party".

Its "the GAP" between the restrictive way that the RO rates the claims, and the "liberal interpretation" that the BVA must give. This "gap" is the reason there are so many appeals...the RO more strictly applies the regulations than does the BVA.

This is the main reason, IMHO, that we often must wait for 5 years to get benefits that should have been delivered in 6 months or less, through a long string of appeals.

Berta

Did the "New" VBM have anything new to say about effective dates?

Edited September 7, 2011 by broncovet

[carlie]

Berta,

I smell bits and pieces in this, that remind me of

the old "well grounded" rule.

Do you smell any of it too ?

[Berta]

"Berta

Did the "New" VBM have anything new to say about effective dates? "

Nothing new that I recall but I will check that

"Berta,

I smell bits and pieces in this, that remind me of

the old "well grounded" rule.

Do you smell any of it too ?"

That is an interesting comment Carlie-I haven't thought about the 'not well grounded' bull crap for years because the VCAA is supposed to alleviate that and I feel most of the time the VCAA does -by telling the vet exactly what evidence they need for a well grounded claim.

I forgot my 2003 claim was actually a re-open and I think they first tried to deny it to be reopened but I overcame anything they sent on that idea.

I never even received a formal VCAA letter.

[Hoppy]

Broncovet,

I have so many examples of the RO ignoring statements from veterans and even witnesses statements who are not an interested party that it makes me sick. The BVA cases that are searchable are ;loaded with decisions overturning RO denials when the BVA gives weight to credible testimony from the veteran or witnesses.

[jachay]

I'm always interested in skin problems that other vets have because my husband lost every bit of the pigment in his skin in 15 years after he returned from VN. He had two small white patches under his dogtags, which he wore in his bootlaces, when he left the Army.....he didn't see a need to mention it at the time. Years later, after his bypass surgery, his new doctor said it was caused by herbicide exposure. We had never heard of that before as two other doctors had said it was vitiligo. Vitiligo is spots of pigment loss. My husband lost ALL of his coloring!! He never persued this but we have always believed there was a connection.

....

Broncovet,

I have so many examples of the RO ignoring statements from veterans and even witnesses statements who are not an interested party that it makes me sick. The BVA cases that are searchable are ;loaded with decisions overturning RO denials when the BVA gives weight to credible testimony from the veteran or witnesses.