New Evidence

[john999]

If I had a reopened claim on appeal continuously for a period of five years and then based on new evidence I get a much earlier effective date. I had a claim that was continously on appeal since 1996 and then based on new evidence, according to the VA, I was granted an increase in 2002. My effective date was 2002 based on when I sent in the new evidence. Did I get screwed?

[Guest jangrin]

John999,

I don't think so. They way I understand this is... If you had the evidence all along and they ignored the evidence (like what is happening to Berta)then you probably were screw$$. But if the new evidence was "new" like a new doctor opinion or new treatment or recent diagnosis, and you presented it in 2002 for the first time, then no because you did not have this evidense when you filed originally and this new evidence gives enough to substanciate your claim but at the later date. Anyway ya know I'm just learning but that's how I see it. Anybody else out there ???

Jangrin :(

[john999]

Jangrin

I think you are right. I do have my original claim back in 1973 where the VA ignored my doctor's opinion. The original rating was just based on a review of my records. It was retroactive to the day I got out of the Army which was December 4, 1971. I guess this means direct service connection based on in-service medical records. I think I should have gotten a medical discharge since the service connection goes right to the day I got out of the Army. I only care about a possible CUE and retro for a higher rating.

[Guest anfrnkie]

If I had a reopened claim on appeal continuously for a period of five years and then based on new evidence I get a much earlier effective date. I had a claim that was continously on appeal since 1996 and then based on new evidence, according to the VA, I was granted an increase in 2002. My effective date was 2002 based on when I sent in the new evidence. Did I get screwed?

hi john,as you know i have a lot of appleas under cue, however i could not have done this without my files,sent to me but a very kind lady that worked for va.you would really have to sit down and look at what i have i have papers here that no one could read in va code,black lines running up and dowm that each code means something but what? i fax my neighbor in florida as he was a code maker for the goverment,this code stayed i was mediaal disabled,from the air force, i was granted,100% in 46-49 so today i sent back to va [fax] with the code and i put a cue on them, i have many papers from air force navy granting me compensation,in 1993 agajn i was giving compensation, had a c/p in 1993, dr rateding me 100%, i was in hospital 7 months in occ japan,for radiation, thats why navy gave me 100% i know it,s medical disabilty, navy is ptsd and shoulder,there one lady i really hate , her name is angie,and she,s manager of appleals,always gives me a hard time so today when i sent back the va codes i wrote thank you angie for sending me the va codes,never could of done this without your help,boy wait until she goes to work monday,these codes a no numbers just lines running up and down,but each line stands for something,now how would a veteran know this ?the have all that information in codes ,this code had 75 pages now stop and think if you put in a claim what chance would you have ,because whatever you apply for is already in code,i will win my case for cue, but only with the help of this kind person,i think if i knew what i know now,i would go to va 3 times a week in time i will met someone working there like a cleaning person, and make a deal with them to get my true files,no veteran has true files,so a person could make a deal money talks,so help me that,s what i would i do that,s the only way,you will beat the va ,they do it to us ,so i would turn things around , and when i had the right proof,i would go after them but what chance do you have? with out real proof

[Guest jangrin]

John999,

"I guess this means direct service connection based on in-service medical records. I think I should have gotten a medical discharge since the service connection goes right to the day I got out of the Army. I only care about a possible CUE and retro for a higher rating."

John,

Hey, I don't really understand CUE yet. I'm working on it. I wish someone could simplify how CUE works and when it is used, what time during the claim process.

Is it possible to have the records changed and have them give you a medical discharge now? If they did, would it give you retro pay? Interesting, very interesting, I think.

As hard as it is to get through this system, I think you are !00% P&T , right? If I were you I wouldn't do anything that even remotely had a chance of messing that up. Better to hang around here at hadit and help all us newbies, than mess up your future financial security with VA>

Just a thought,

Jangrin :(

[carlie]

John,

From keeping up with your postings and our brief meeting in Tampa,

I feel the following applies to both of our cases for CUE and earlier effective date.

I'm positive several of my claims were granted on cumulative evidence.

Hope this helps a vet.

carlie

5. New and Material Evidence

Introduction This topic contains information on new and material evidence, including

• reopening denied claims

• the definition of the term new evidence

• cumulative evidence

• the definition of the term material evidence

• requirement for reopening a claim

• handling submitted evidence, and

• notifying the claimant that the reopened claim remains denied

Change Date December 13, 2005

a. Reopening Denied Claims Once a claim has been finally denied, it cannot be reopened unless new and material evidence is received.

Reference: For more information on new and material evidence, see

• 38 U.S.C. 5108, and

• 38 CFR 3.156.

b. Definition: New Evidence New evidence is evidence that has not previously been considered. New and material evidence must

• not be cumulative of evidence of record at the time of the last final denial, and

• prove the merits of the claim relating to each essential element that was a specified basis for the last final denial.

New evidence may be in the form of either written or sworn testimony.

Reference: For more information on what is considered new evidence, see

• Cuevas v. Principi, 3 Vet. App. 542 (1992), and

• Barnett v. Brown, 8 Vet. App. 542 (1995).

Continued on next page

5. New and Material Evidence, Continued

c. Cumulative Evidence Evidence is merely cumulative and is not to be considered new evidence if it

• reinforces a previously well-established point

• provides additional details to support previous statements, or

• rehashes previously submitted statements.

d. Definition: Material Evidence Material evidence is evidence that by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

To be considered material, evidence must be of sufficient significance so that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, both old and new, would help prove the claim.

Newly submitted or secured evidence must be material to the reasons for the last final denial.

Note: “Last final denial” includes denials on any basis, such as lack of new and material evidence. To be final, over one year must have elapsed since the claimant was notified of the decision to disallow the claim.

Reference: For more information on material evidence, see Masors v. Derwinski, 2 Vet. App. 181 (1992).

e. Requirement for Reopening a Claim A previously denied claim is not considered reopened unless the evidence submitted is both new and material.

Examples:

• An inaccurate history contained in subsequently received evidence does not constitute new and material evidence to reopen a claim for service connection that was previously denied.

• An assertion about the cause of a medical condition made by a layman is not sufficient to reopen a previously disallowed claim.

References: For more information on

• essential elements of a claim, see Evans v. Brown, 9 Vet. App. 273 (1996)

• inaccurate history as evidence, see Reonal v. Brown, 5 Vet. App. 458 (1993), and

• medical assertions by laymen, see Allday v. Brown, 7 Vet. App. 517 (1995).

[vetassist]

If I had a reopened claim on appeal continuously for a period of five years and then based on new evidence I get a much earlier effective date. I had a claim that was continously on appeal since 1996 and then based on new evidence, according to the VA, I was granted an increase in 2002. My effective date was 2002 based on when I sent in the new evidence. Did I get screwed?

They are correct above. If your evidence submitted in 2002 to get you an increase, was NOT available when they made their earlier decision there is a good chance that they would not give you an earlier effective date nor a CUE.

A clear and unmistakeable error is only appropriate when evidence was already in the C-file prior to the better decision but not used by the VA to make their decision. A simplified example would be:

A vet files a claim for anxiety. Submits a statement from his mother in support of the disability as well as evidence from his private medical provider. He receive his decision denying his claim. In the "evidence used" section of the rating decision doesn't list the private medical records. In the "reasons and bases" the VA lists that the denial is due to lack of a diagnosis, but that diagnosis was in the private medical records that are not referred to. The CUE in this case would be to bring to their attention the private medical records which allow them to find in the veteran's favor. If this still doesn't make sense, please let me know.