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

[broncovet]

Hoppy...

It sounds like you are agreeing with me. Other than the fact there is significant financial incentive for the VARO's to delay, there seems to be no good reason that the VARO's takes a significantly restrictive position over the BVA. The financial incentives for the VARO to "send the Veteran down a very long appeal journey" are two fold: 1) First, the VA secures an interest free loan from the Veteran at the expense of the Veteran by delaying benefits. 2) Since many Veterans die in the long wait for appeals, much of the "delay money" is never paid back. In either of these scenario's the VA wins at the Veteran's (and their famalies) expense. Many Veterans simply can not bear that burden, and 18 per day take their own life.

Mr. Roberts, the Chief Justice of the Supreme Court, noted that the VA takes a position against the Veteran which is "substantially unjustifed" more than 50 percent of the time. Failure of the RO to give credence to the Veterans testimony, even tho this is required by the courts, is one such example. I can not figure out why Veterans groups continue to allow this to continue.

[navydoc2]

I recall my first appeal with the VA was for sc for right knee. I explained my symptoms to the CP doc and to the person via teleconference. He then dismissed all of my testimony based on me not being an "expert". My appeal was denied and it hinged on my word vs what the cp doc made up. It was determined that my injuries were because of a surgery when I was seventeen. When I got out of the military I was 38 and had spent years humping with the Marines with no problem before it started taking its toll on me. I never re appealed that case but I learned an important lesson from that experience.