Thoughts On "new And Material Evidence" Standards.

[Troy Spurlock]

Mods, feel free to move this topic to the appropriate forum if I have posted it within the wrong one.

I am getting ready to go head to head with the VA helping another Vietnam veteran reopen a claim vs. filing it as a new one because the original claim was not only incorrectly filed by the county VSO (that I hope to replace soon, interview is tomorrow for the job), but the VA RO in its denial really didn't address any evidence for or against the claim and was rather vague about it.

I made a great investment buying two books from Lexis Nexis that focuses on case law, etc. and the CFR/USCS on veterans benefits, and in reading it I cannot help but question something. Here is what I gleaned from the text:

"The new definition of "new and material evidence" has changed and is applicable to any claim finally denied received on or after August 29, 2001.

New evidence means existing evidence not previously submitted to agency decision makers."

>Okay...so what if a veteran, by whatever means, submitted "evidence" to the RO [bUT] the RO 'never' really considered it and/or cited it in their decision of denial?

Just because "evidence" is submitted to agency decision makers does NOT necessarily mean that that evidence was actually reviewed much less considered by the [decision makers].

Thoughts?

"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."

>What if all the evidence on file is generated by the VA Medical Center, and as we are all human, to be human is to er. That being said, the rectal cancer that this veteran was diagnosed with was given a particular name, which could qualify as a 'soft tissue sarcoma,' a presumtive condition of AO exposure.

Then again, it could have been misdiagnosed altogether yet operated on just the same (and incorrectly with three follow-up corrective surgeries that included a stint in the bladder sphincter muscle - which in and of itself is another claim, either tort (malpractice) or subject to disability compensation according to some citations I read in the Lexis Nexis books).

"New and material evidence can neither be 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."

>Again this begs the questions, what if the decision makers NEVER considered it?

The advocacy tip in these books state that an advocate needs to focus on the reason(s) for the denial in asking to reopen a claim.

Given the decision of denial on this veteran, which is vague and makes NO reference to any diagnosis or specific evidence; I feel that reopening it won't be that difficult, it's their anticipated denial based on "new and material evidence" I want to nip in the butt before they can give it.

Thoughts?

[Hoppy]

You have not provided enough specific details for me to offer an opinion. It would be nice to know exactly what the denial said.

They are not required to discuss every piece of evidence in the file. If they failed to list the evidence, that is another story. However, if the veteran was treated in a VA hospital they usually show the dates of the records they obtained from the VAMC without listing each specific report given to them by the hospital.

Additionally, it sounds like you are claiming there was a misdiagnosis issue. If you were to get a medical opinion with a change of diagnosis, this easily could be new and material evidence.

[john999]

If there is a medical report offered as evidence and the VA neither considers it or lists it that makes two prongs of the three steps for a CUE. The third step depends on if the excluded evidence would have changed the outcome of the rating decision. Then that gets into other areas of "reasonable minds" and "undebatable certainty" which are really the judgement of the VA. That is when you need a lawyer.

[Troy Spurlock]

The denial said nothing about the condition claimed other than it was denied, and that's my point in maneuvering to reopen the claim.

And while the VA doesn't have to discuss every piece of evidence, it does have to cite the evidence considered in order to justify the denial.

Does it not stand to reason (then again we are talking about the VA)...that evidence not considered is tantamount to evidence not received?

If the VA has given no specific reason for the denial - xyz report of Dr Who said this and that - or some case/statute - then it pretty leaves it open for a request to reopen the claim.

One can certainly argue a misdiagnosis and claim a different one with the proper medical literature and case citations, along with other argued points just enough to get the VA to grant the reopening of the claim; and once they do they are obligated under VCAA to provide a proper exam and assist in acquiring the "material evidence" necessary from the VA medical center (the only place this vet has been treated for this cancer as he has been unemployed ever since and has no other insurance).

Thanks for the replies gentlemen. I will also double check the CUE prongs, but a reopened claim is easier than CUE to argue and get approved in the short/long run...no?

Edited June 25, 2012 by Troy Spurlock

[Troy Spurlock]

I'd be curious to know how you became 100% SC for Angioedema... (according to your signature line).

Exactly how was it service connected?

Did a quick Google [medical] search for it then Control F for "military" "agent" "orange" and other relevant key words...no matches.

?

Must have been a pre-existing condition classified as "aggravated by in service," no?

Just trying to learn what I can...and that condition is well, unique...to say, from what I read, that is...

Edited June 25, 2012 by Troy Spurlock

[Troy Spurlock]

If there is a medical report offered as evidence and the VA neither considers it or lists it that makes two prongs of the three steps for a CUE. The third step depends on if the excluded evidence would have changed the outcome of the rating decision. Then that gets into other areas of "reasonable minds" and "undebatable certainty" which are really the judgement of the VA. That is when you need a lawyer.

So far in 15 years I've never needed a "lawyer" to win a case with the VA, either for myself or another veteran.

Being a lawyer doesn't make or break a VA case, because even lawyers have to be "accredited" via the DVA (which is meaningless IMO) in order to effectively represent someone on more than one claim (and that is the ONLY thing being accredited does for you, it allows you to represent a veteran on more than one claim on a one time basis).

Otherwise, ANYONE can represent a veteran on one claim on a one time basis via VA FORM 21-22a (http://www.vba.va.go...-21-22A-ARE.pdf). The REAL question is...does the individual REALLY know and UNDERSTAND the process to be an EFFECTIVE ADVOCATE!?!

I do...most lawyers don't.

County counsel referred me to a friend of his, a Lt. Colonel in the MC who is retiring and a former DA and DOJ lawyer going into private practice who needs guidance in filing claims with the VA. We met, he liked what I had to say, presented myself, and asked that we counsel one another on helping veterans. Suffice to say I was honored, but it also proves...a veteran doesn't always need a lawyer, just someone who understands how the VA claims system works.

Edited June 25, 2012 by Troy Spurlock

[Stretch]

Sometimes evidence doesn't make it into the VARO in time for a decision. Once I call my DAV rep. and asked him why a piece of my evidence was not considered in my claim. He told me that it was sitting right there on his desk. It was from that point on that I decided to send evidence myself with a certified mail. When it comes to court, then you will have the receipt.

This cross over of evidence sometimes is the reason that evidence is not considered. It is also the reason that I decided not to go with VSO's.

If the court does not have the evidence it can not consider it.

______________________________________________

Most of us here have won our own claims, basically. We have become pro-active, dug down, and learned the process. We have learned much more than that. We have learned the bottle necks that aren't included in the system.

Many Vets are over whelmed with the system for one reason or another, and just give up. These Vets need to go to a lawyer. There are just to many for one person to handle alone. Go to any VSO office and look at the claims piled up to the roof.

Edited June 25, 2012 by Stretch