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?

[Berta]

Troy said

"Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology."

SO TRUE!!!!

Also one must consider if a cancer that seems to be a STS AO cancer, or any one of the other AO types of cancer, if in fact, it has metastasized from a non AO form of cancer. That possibility can be fatal to a AO claim,if the actual etiology is not a AO presumptive for of cancer.

STS cancers on the AO list are often very rare forms of cancer.

And you are SO correct here-I personally new some reps who had never considered the AO STS list regarding some of their Vietnam veteran's claims for cancer.

While these are rare, still no stone can be left unturned.

I know a local veteran who was trying to get into some class action case regarding a form of cancer years ago I forget what the class action was really about. Not a VA issue.

The lawyer sent him a letter indicating his specific cancer was not the type of cancer that the class action was all about.

I fired off a letter to the lawyer because I had prepared this vet's paperwork, with evidence that this cancer had many different descriptive medical terms and he had misinterpreted the veteran's form of cancer. As evidence I enclosed some print outs from Mayo and one of the major cancer institutes.

The lawyer sent him another letter including him in the class action case.

I lost touch and have no idea how that all turned out.

One of the biggest problems I see (and a problem that caused the VA to deny many claims years ago under the 'not well grounded theory' prior to the VCAA,

is exactly what you stated.

When we file a claim for a condition that the medical evidence does not support,because it is the wrong condition terminlogy,

we will more than likely be denied.

[Berta]

To add to Hoppy's post here:

Hoppy always gives great citations:

Boggs V Peak is a US Federal Circuit Court decision

This appears to be a Bad Water Le Jeune veteran situation ( comtaminated water at Camp LeJeune, I posted info on that at hadit before)

The BVA decision ( a 2010 remand-and this might be the same first LeJeune SC vet sced due to bad water)

states the citations Hoppy gave and states this:

“In doing so, the Board acknowledges that a change in diagnosis or

the specificity of the claim must be carefully considered in

determining whether the claim is based on a distinct factual

basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).

In

Boggs, the United States Court of Appeals for the Federal Circuit

found that a claim for one diagnosed disease or injury cannot be

prejudiced by a prior claim for a different diagnosed disease or

injury, when it is an independent claim based on distinct factual

bases. However, the United States Court of Appeals for Veterans

Claims (Court) clarified in Velez v. Shinseki, 23 Vet. App. 199

(2009), that the focus of the analysis must be whether the

evidence truly amounted to a new claim based upon a different

diagnosed disease or whether the evidence substantiates an

element of a previously adjudicated matter.”

This is a powerful application of Boggs that could impact on many vets here.

http://www.va.gov/vetapp10/files4/1033910.txt

I need to really digest this entire BVA decision.Lots of good legalise in it.

[Troy Spurlock]

The VA refused several requests to give me a C&P. Why did they not give me a C&P? It is because the diagnostic terms changed between the time I was in the military and the time I filed the claim.

For now, it's late, but this is the only point I want to address tonight.

Then or now or in the future it makes no difference where the VA cares as far as the CFRs and USCS are concerned...because no matter how out of date they are with current medical knowledge (e.g. FMS is a "chronic" medical condiiton, and not what the current CFRs state as a episodic (20% rating) vs. chronic (40% rating) condition is concerned. Thus, the VA regulations either by statute or promulgated administrative rules are outdated where the current medical information is concerned.

Which is EXACTLY why I won on appeal at the BVA within 3 months of receipt of my appeal at the BVA!!!!!!

I will address the rest of your response later...notwithstanding, thank you for your conitnued participation in this discussion.

TS

Edited June 29, 2012 by Troy Spurlock

[Troy Spurlock]

Troy said

"Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology."

SO TRUE!!!!

Also one must consider if a cancer that seems to be a STS AO cancer, or any one of the other AO types of cancer, if in fact, it has metastasized from a non AO form of cancer. That possibility can be fatal to a AO claim,if the actual etiology is not a AO presumptive for of cancer.

STS cancers on the AO list are often very rare forms of cancer.

And you are SO correct here-I personally new some reps who had never considered the AO STS list regarding some of their Vietnam veteran's claims for cancer.

While these are rare, still no stone can be left unturned.

Thank you!!! That is EXACTLY what I intend to do...leave no stone unturned!!!

Tomorrow I learn whether or not I get the county VSO position...

TS

[carlie]

Tomorrow I learn whether or not I get the county VSO position...

TS

Troy,

Good luck - hope it works out the way you want : - )

[Berta]

Good Luck Troy!!!!

Our veterans and dependents need all the help they can get these days.I sure hope you get this job (wish you were my county's VSO) and I know you will do a good job if this turns out good for you.