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]

Troy

Do not feel like I am picking on you. I have told many people on the board to post some case decisions or I will consider their opinions mute, including carlie. This board gets it’s power from the fact that 1000 heads are better than one. We all learn from and build upon our collective knowledge. As a result of my training, developing claims for labor law lawyers, I personally rely heavily on case decisions in which the CFR’s are applied. I do not rely on CFR’s that are not contained within a case. There is too much room for misapplication. I usually cite CFR’s from decisions I am familiar with in my posts. In my 14 years on hadit I have read close to 1000 BVA cases covering many types of claims.

My concern as to how you planned to use the outdated medical evidence argument was preceded by the statement that I do not know where you are going with this argument. It was brought up in this thread and my intention was to address it from every angle I know. I also leave no stone unturned.

My main concern was with this statement --- (e.g. FMS is a "chronic" medical condition, 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.

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

You did not cite any case law contained in your appeal nor did you provide a docket number for this appeal. I take most statements made on the board that are unsupported by the applicable case decisions with a grain of salt.

Even if an issue within a thread is off topic I will continue to address any statement within the thread. There are many people reading these posts by doing word searches on hadit or even on google. Google indexes hadit posts. These people may or may not read the entire threads. I personally found hadit over 14 years ago by doing a single word search for “angioedema” on google. The google link opened up in the middle of an angioedema thread on hadit.

As stated before I challenged your statement that ”FMS… is not what the current CFR’s state”. The only reference I found was that the VA recognized episodic symptoms of FMS. Your recent response did nothing to rebut my challenge or clarify that there was any significance to the problem you identified with the CFR’s and how this problem would impact a claim. Until such time you post some case laws or docket numbers that will explain the significance of the problem you identified I will consider your statement mute.

Edited July 3, 2012 by Hoppy

[Troy Spurlock]

Apologies Hoppy...I didn't know you were challenging me on the FACT that did win my appeal on the incorrect and outdated CFR on FMS...equally I found your response moot since I was granted full benefits sought on that appeal.

And I misspoke on my BVA case, which was specifically appealed to have my IBS and my dyssomnia separated from my FMS rating as separate ratings as they are medically separate conditions that merely coexist with FMS.

I will post a link to that BVA ruling in my favor later (not at home, using iPhone at moment).

Lastly, again I appreciate your replies and most of all the manner in which you give them were cited cases juxtaposed to CFRs are concerned.

Again, will provide more info later...

[Hoppy]

Troy,

I am aware you won a full grant. The reason I requested the docket is to review the exact terminology provided by the BVA. I can think of only several reasons why the BVA awards a 40% rating. The award terminology usually follows closely to the examples below.

The medical records support a 40% rating.

Although the reports do not support a 40% rating the records do exceed a 20% rating and most approximate the higher rating.

The award was made by analogous rating.

The award was made by an extra schedular rating.

In other words I do not think the EXACT reason you got a 40% rating was due to the fact that you thought the CFR was outdated because of some confusion as to whether or not CFS is chronic or not. . There must have been medical evidence in the file that resulted in the rating. The raters already know that any condition that is listed in the schedule as ratable at either 20% or 40% must be considered chronic.

You can file an argument using any terminology you want. However, the terminology and reason used to make the award can be different. The VA is required to consider any filing as a request for a maximum benefit. Thus, you can make an irrelevant argument in the filing and still win a claim. However, I would not recommend this. I have seen way to many claims in which the VA has only dealt with the irrelevant argument and failed to address the core issues in the claim.

One word or one phrase that is vague or irrelevant in a filing or a medical report can result in a denial. Thus, I prefer to argue using the exact terms that I have previously seen in successful awards. Considering my experience with terminology issues I do not consider my points to be mute just because in this instance you were successful. I still have no reason to believe that the argument you advanced was relevant to your claim. Maybe you threw in some other arguments that specifically pointed out the exact medical evidence. Maybe the raters did their job and figured it out on their own. When arguing a higher rating all I do is focus on the medical evidence and show the raters how to connect the dots between the medical evidence and the rating schedule. I have never used vague references to the fact that the cfr's or rating schedule being flawed. As far as I am concerned the medical evidence supporting a higher rating is the only EXACT reason higher ratings are awarded, not a claim that the CFR’s or rating schedule is flawed.

Sorry to make such a big fuss about semantics. However, the VA raters can be masters at word games. I have seen many claims in which the veteran’s filing was slightly vague or not focused and rather than the raters developing the claim they denied the claim by only addressing the vague reference noted in the filing. One claim that immediately comes to mind involved a filing for an increase of an already service connected panic disorder. The claim was denied because the veteran filed for an increase for his anxiety disorder. The rater could not or did not want to connect the dots. Panic disorder is an anxiety disorder. One simple argument explaining that Panic Disorder is an anxiety disorder with some attached supporting medical literature got the claim back on track. I recently assisted a veteran whose claim was denied because a doctor said that, it is well established in the medical community that there is a relationship between the veteran’s current condition and the condition he was diagnosed with in the military. I submitted a statement that there is peer reviewed research showing the relationship between the two conditions, and the claim was awarded. I have seen BVA cases where the reference to research studies advanced a claim and resulted in the veteran winning the claim. I have never seen a claim where a vague reference made by a doctor as to knowledge in the medical community advanced a claim.

I am glad you won your claim. All I am doing here is splitting hairs about terminology. There are a lot of people who read these posts and I consider terminology an important issue. I do not want to give the impression that there is any way to win a higher rating other than developing the medical evidence. Relying on a sole argument that the laws are flawed may be ignored by the raters. According to the late Alex Humphries, “medical principals dominate legal arguments”.

[Troy Spurlock]

Hoppy,

While you bring forth valid points and information, one thing has remained consistent in all your responses...you make far too many assumptions (i.e. hasty generalizations - a logical fallacy) about what I (or another person) is arguing without knowing any facts. You know, it is okay to take a leap of faith and just share your knowledge and experiences with suggestions and further questions to illicit more information.

You presume this or that, or maybe this if not that...without really knowing anything for certain; and the manner in which you come across teeters on (or is tantamount to) being somewhat condescending.

For example: "I still have no reason to believe that the argument you advanced was relevant to your claim. Maybe you threw in some other arguments that specifically pointed out the exact medical evidence. Maybe the raters did their job and figured it out on their own...I have never used vague references to the fact that the cfr's or rating schedule being flawed. As far as I am concerned the medical evidence supporting a higher rating is the only EXACT reason higher ratings are awarded, not a claim that the CFR’s or rating schedule is flawed."

Bottom line is I did, have done, and still do just as you do if not more...WITH the BIG DIFFERENCE being that I have a legal education and professional background that gives me a better grasp (understanding and proper interpretation thereof) of the law (which is why I have been successful in my own claims, and those of the other veterans I have helped to date); can you say the same?

Notwithstanding, though I have my own understanding and interpretation of the law...coming here and asking what others have experienced helps me solidify that understanding and interpretation that much more. So rather than question my basis for asking, just answering the question (like Berta and others have) is far more fruitful to the intended discussion.

------------------------

Now, regarding my appeal (which was decided by a DRO not the BVA) of the original 20% FMS rating, I did all the legal and medical research and cited appropriate cases and medical literature to substantiate my argument that the differentiation between episodic and chronic where FMS is concerned is medically inaccurate; as such, the CFR differentiating FMS as episodic vs. chronic is equally inaccurate because it doesn't conform to the medical evidence established in diagnosis and treatment of FMS as a CHRONIC condition.

The evidence the VA cited in my appeal were my own letters and that of my wife with the usual follow-up outpatient treatment reports, nothing more. In the end all the VA said was "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."

They also agreed to another argument I proffered in my appeal: "...the VARO will concede that any symptoms that is found to be associated to the veteran's service connected fibromyalgia by a medical professional will be recognized...If a medical professional states that a symptom is related to fibromyalgia, it will be more closely looked at, analyzed and rated."

The rest of the rating decision is filled with the usual regurgitated CFR and other formatted language seen in every rating decision. Either way, the VARO conceded to my lengthly legal and medical juxtaposed arguments and granted the 40% rating, even if they didn't come right out and blatantly say I was right for the reasons given...the VA rarely if ever does. And if it does, it is usually somewhat cryptic - case in point: the above quoted section of my appeal where the VARO admitted it would concede to any symptoms being associated with FMS shall be recognized, considered, analyzed and rated appropriately.

As for my appeal at the BVA getting my Irritable Bowel Syndrome and insomnia separated from the FMS rating, I was successful at that too...the argument I advanced and agreed to was echoed in writing by my VA primary care physician, which was the tilt factor in my favor of winning this appeal: http://www.va.gov/ve...es3/0615044.txt

Thank you Hoppy for your time and interest in this discussion, it was truly appreciated.

I hope you will contribute when I post a new thread specific about the veteran's case I am working on now, and I will post more details and (without using his personal information in order to maintain confidentiality) parts of my theories of proposed arguments. Your insight, as well as Berta's and many others here would naturally be greatly appreciated.

Sincerely,

TS

Edited July 10, 2012 by Troy Spurlock

[Hoppy]

Troy,

Sorry for the tardy response, I have been dealing with some medical issues of my own.

As stated in a previous post my concern was

My main concern was with this statement --- (e.g. FMS is a "chronic" medical condition, 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.

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

I felt this statement failed to address the importance of medical evidence. Thus, I launched an investigation to determine that medical evidence was a significant factor in winning your claim. My primary approach here on hadit is to advise any veteran who reads any thread or single post that medical evidence re-opens closed claims and wins claims. As it turns out I was successful in identifying by your own words the medical evidence in the file at the time your claim was awarded. Had you not emphasized the importance of your legal argument by stating your success was due “exactly” to a single reference to a legal argument, I would not have taken exception to your choice of terminology. As I said before my concern is the choice of words used. Had you made any reference to the impact medical evidence had on your claim the issue would not have been addressed by me. As far as I am concerned your recent post shows that this issue has been sufficiently addressed in this thread.

"Bottom line is I did, have done, and still do just as you do if not more...WITH the BIG DIFFERENCE being that I have a legal education and professional background that gives me a better grasp (understanding and proper interpretation thereof) of the law (which is why I have been successful in my own claims, and those of the other veterans I have helped to date); can you say the same?"

Regarding the above paragraph.

My focus is on providing veterans with strategies on how to develop medical evidence and rebut bogus C&P exams. I work with veterans locally by going to their clinical appointments with them and talking directly to clinicians. In cases where this is not successful I have clinicians in my stable that will put their curriculum vitae at the front of the reports I write and sign them off. I have been very successful with reports that I have collaborated with these clinicians in as much as the reports were cited by DRO’s as evidence used to award a claim. I also deal with claims involving the proper interpretation of the law.

I do have significant medical/legal training with a specific emphasis on veteran’s claims. However, considering the non specific identification of your training and our previous mutual understanding that credentials are not as important as results I will not go into details about my training. You might be surprised

In regards to your question about results “can you say the same?” The answer is Yes, However, you can hear it from other folks who have been on this board for decades. You may have already known the answer to your question if you checked out the forum “success stories” as I suggested in a previous post.

Check out the titles “Official letter received” by deanbrt . “Thank you Hoppy” by first infantryman’ and lastly “Brown envelope/Hoppy” on the second page of posts. Check out the comments by long time hadit contributors carlie, jbasser, halos2, Terry Sturgis and pete53. They do not keep a score card hear on hadit. However, I can tell you that my PM box is full of thank you notes going back many years. If you note the label right below my picture you will see that I am considered an ELDER on this site. The moderators of this site do not promote people to ELDER solely by the length of time you have been a hadit member. They give consideration to the quality of a person’s contribution to this site. Throughout the last 14 years I have dealt with all my veteran’s activities on this public board. I even discuss claims for veterans who I have assisted through local outreach. One claim for a veteran I assisted had four previous denials and been closed for four years prior to my involvement. Additionally, the claim had been dropped by both the DAV and the VFW. The claim turned out to be a slam dunk with full development and was awarded within a year and a half after my involvement.

As far as your comments go about me being condescending, presumptuous and any other judgment you came up with, consider the following. I think that the possibility someone may interpret my questions and statements as such goes with the territory. Your lack of detail in your posts puts me in a position to investigate. As such, my presumptions are designed to cause the uncovering of the omitted details. I did challenge and investigate what I considered an incomplete representation of the reasons claims are awarded. Your lack of reference to medical merits involved in winning a claim was being investigated. As such, my prior non military training performing depositions and as an investigator/interrogator allows for a investigator to be condescending, presumptuous or give rise to any personality trait that will achieve a result. I am sure you are aware of this as a result of your military training as an MP.

Thanks for posting the citations in regards to the medical merits of your claim and keep up the good work you do for veterans.

Edited July 17, 2012 by Hoppy

[deanbrt]

I have written this before but am happy to do so again. If it were not for the brilliant (and I mean brilliant) summation Hoppy made on my behalf before the Board of Veterans Appeals, I am not convinced that I would have won and had the satisfaction of reading "100%, Permanent and Total, no further examinations scheduled" yesterday.

What was so striking to me then and now was the hours and hours he put into it for me researching and on the phone.