Seeking Clarification Of Vcaa Notice

[autumn]

i submitted a claim via VSO in 2008 for cervical/lumbar issues and increase. i was at the time still assuming RO got copies of med records vrom VA. wasn't enlightened to the c-file fact of life.

so i was denied, obviously, as i know now.

submitted a new claim recently with "all" med evidence. (learned the hard way)

finally got the VCAA notice today saying they are working on my claim for this. they don't mention they got the document folder sent to them in november.

they mention the 2008 claim and that in order to reopen they new matierial evidence and related to that fact.

i'm thinking everything i sent this time is new as i really didn't send them much in 2008. the VSO rep never mentioned to me about getting evidence into a c-file when i told him it was all in the va med records.

q1. are these standard letters? they write they need evidence from mil time to present time.

however, docs showing all that were in the folder i sent them. do i send that again or what?

does this mean they didn't get the folder or is this just a standard letter?

q2. should i let RO know that in 2008 VSO rep didn't inform me of c-file needing docs or is that just my mistake to eat?

you may remember me asking another question on the forum that i never got the VCAA notice that they recielved my folder of info.

[Medic]

I have a question Autumn did you put in a new claim or did you do a (NOD) Notice of Disagreement for the denial?

As for the letter - I would touch base with your VSO rep just to make sure what all might be missing and what info they already have - because I've found that sending in the same info they already have just adds more paperwork. You can mention to the RO about the VSO rep but it did not help me lol I wanted a few claims put in as CP but my VSO put them in as Appeals (which I found out takes years for a decision). Hope I was able to help.

[autumn]

I have a question Autumn did you put in a new claim or did you do a (NOD) Notice of Disagreement for the denial?

As for the letter - I would touch base with your VSO rep just to make sure what all might be missing and what info they already have - because I've found that sending in the same info they already have just adds more paperwork. You can mention to the RO about the VSO rep but it did not help me lol I wanted a few claims put in as CP but my VSO put them in as Appeals (which I found out takes years for a decision). Hope I was able to help.

didn't do the NOD for the denial that i recall. i didn't even remember submitting that claim until this new letter.

i'll call my VSO mon to verify. i already asked him if he had a receip for that folder being delivered. he wasn't very responsive. probably busy. i'll ask him to verify . last thing i want to do is make RO job more difficult, really.

whats a CP versus Appeals?

sure, it all helps...at least for me it does. thanks

[carlie]

Autumn -

Medical records from your VAMC don't automatically become a part of claimant's

claims files.

If there is VAMC evidence that needs to be of record for claims we have to notify VARO

of the dates of evidence we want them to obtain or submit it ourselves.

I would resubmit the specific evidence again to your VARO.

Since you mentioned New & Material evidence needed to re-open the claim issue,

I think you might want to research exactly what IS and What Is Not, considered

N&M evidence by the VBA.

I feel surely that their definition may differ from what many of us THINKS it means.

An example of this is - a different doctor stating about the same evidence - well,

normally I would think - see here VBA - here's another doctor's evidence stating

and supporting the same thing that you have denied me on.

Going by VBA - that second doc's evidence is not New & Material - it's cumulative.

This is my understanding - so be sure first that this evidence meets the criteria

for N&M.

JMHO.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=7b7bbe310804aa6e7a1b53d460006d74&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.65&idno=38

§ 3.156 New and material evidence.

(a) General.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

[autumn]

Autumn -

Medical records from your VAMC don't automatically become a part of claimant's

claims files.

If there is VAMC evidence that needs to be of record for claims we have to notify VARO

of the dates of evidence we want them to obtain or submit it ourselves.

I would resubmit the specific evidence again to your VARO.

Since you mentioned New & Material evidence needed to re-open the claim issue,

I think you might want to research exactly what IS and What Is Not, considered

N&M evidence by the VBA.

I feel surely that their definition may differ from what many of us THINKS it means.

An example of this is - a different doctor stating about the same evidence - well,

normally I would think - see here VBA - here's another doctor's evidence stating

and supporting the same thing that you have denied me on.

Going by VBA - that second doc's evidence is not New & Material - it's cumulative.

This is my understanding - so be sure first that this evidence meets the criteria

for N&M.

JMHO.

http://ecfr.gpoacces...1.60.65&idno=38

§ 3.156 New and material evidence.

(a) General.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

i will print this out and mention it to my VSO mon. i don't think much was submitted last time so that new folder VSO supposedly sent in Nov should be almost all "new" evidence. i sent another note to RO last week asking them to let me know if they got that folder with the claim letter from VSO, but haven't heard back.

VSO, if willing, should be able to find that out, i would think. but, as you say, what WE VETS think and they, is well, different.

thank you