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?

[deanbrt]

"Sadly sometimes (rather more often than not) it takes someone at the BVA level to see the unsubstantiated position of a VARO and reverse it by granting the benefits sought on appeal."

Agree. There are those that favor the DRO prooess. I am not one of them. I wanted things to BVA as fast as possible.

[Berta]

Chuck, I experienced that myself a few times and what really got me was that the "non existent" records were the ones most critical to my past claims.

I found a critical Peer Review , which the Regional Counsel as well as the Peer Review doctor, had verified to me was done, here at the Bath VAMC, in a few weeks after the VA got my SF 95 and 1151 claim , faxed to Regional Counsel, then , as the RC told me, he hand delivered to the VARO , as VA regional counsel in those days was only a few blocks away from the RO and it was also filed with the OLMA (Office of Legal/Medical VA ) and then it suddenly vanished and VA said it never existed.

In 2003 I found it at the very bottom of my C file.So I used it for my last 3 claims.

By the time the OGC had awarded my FTCA settlement, they too had no record of this crucial 'non' existent Peer Review either.Good thing i had considerable other probative evidence.

Non existent my --s.

[Hoppy]

Just to give some perspective on what I saw in deanbrts claim. I think I posted some of this before in a specific thread and I will post it here at risk of jumping on Troy’s question about cancer issues which I will address on Tuesday. This is basically because Dean’s claim is on the top of my head and I want to do some more research on cancer.

The issue I dealt with was service connection of a condition secondary to an already service connected condition. The problem with Deans BVA denial is that it was denied without full medical development. Even though the law firm advancing the claim had obtained a report from their own clinician in support of the claim, the clinician did not read and rebut two C&P exams that were used as evidence against the claim. Additionally, the examiner stated something to the effect that that it is well known in the medical community that there is a relationship between the veterans secondary condition and his already service connected condition.

The BVA even mentioned that they thought the report from the law firm’s clinician was weak because the report did not mention the two c&p exams. The other weakness that I saw was that the clinician used vague terminology regarding what was known to the medical community.

I had previously read BVA cases many years ago which cited some court definition as to what types of medical evidence have probative value. There were two classifications. One was clinical findings and the other was peer reviewed research published in journals. I also read cases in which peer review research was mentioned yet the research was not specifically identified, the claims were remanded requesting that the research be obtained prior to a decision. I felt that dean’s claim should have been remanded. However, I guess the BVA was looking for the magic word “research” rather than a vague reference to what is known to the medical community. My position paper identified the existence of such research and I even attached a study that referenced that the determinations linking the conditions they studied which were also related to dean’s claim had also been verified by similar published studies. In other words I reinforced the evidenced in favor of the claim.

Step two was to attack the evidence they cited as being against the claim. I argued that the c&p examiners who wrote the reports that were used against the claim showed a bias by not advising the BVA of the existence of research showing that the conditions were linked. I developed additional attacks on the c&p examiners reports. However, the specifics will require that I go into too much detail about specific medical issues which I do not do without the veteran’s consent. As far as I know the claim was awarded without a new C&P. I feel all they needed was the research linking the two conditions and to raise doubt that the c&p examiners report was based on relevant facts.

[Hoppy]

Troy

I was not able to research cancer claims, so I will go with what I got. I have not been involved in cancer claims. This may be relevant to my particular way of dealing with claims. The DAV published reports many years ago that their experience with the VA shows that there are certain types of claims that were not specifically identified by the DAV that they believe the VBA deals with in an adversarial manner. The DAV did not identify exactly what types of claims these were. However, my experience tells me they involve mental health claims and back conditions. The claims I deal with are usually already denied and I go to extremes to advance the claims ASAP. All this being said a cancer claim may not be as difficult as the issues I discuss due to the fact that the VA could be more friendly to cancer claims or there may have been some changes in the medical principals in a cancer claim that the VA has become aware of since the denial of the claim you are working on.

would that medical diagnosis and surgery report not be "new and material evidence"

Not necessarily, It depends on the medical evidence. Assuming the Oct 16, 2004 report is considered new and they were not in possession of this report at the time of the original decision, determining that it is material at this time would also be required. It is a two step process. Additionally, there are laws and M-21 instructions in addition to the new and material evidence laws that will come into play.

“New evidence means existing evidence not previously submitted

to agency decision makers. 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. 38

C.F.R. § 3.156(a) (2008).”

THE ISSUE OF NEW EVIDENCE

The evidence in the Oct 16, 2004 report will be reviewed and they will determine as stated above that the evidence relates to an unestablished fact. In your case I would think that the unestablished fact will be a diagnosis not considered or any other issue identified by the doctor that would raise the reasonable possibility that the claim can be substantiated. I will bet if the diagnosis appears in any of the reports in their possession from Oct 31,2004 and later they will say the issue is not new and you will need to find another significant issue in the Oct 16, 2004 report that would raise a reasonable possibility the claim can be substantiated.

THE ISSUE OF MATERIAL EVIDENCE

I am not sure what CFR’s you have been reading. However, the above definition of new and material is cited in BVA decisions within the last year. The last sentence in the above CFR states in order to be material it must raise a reasonable possibility of substantiating the claim. The claim to re-open will be based on an interpretation of the medical evidence more than an interpretation of the law. Interpretation of this sentence is often used by the BVA to determine the evidence added to the file although new, is not material. I feel the raters take advantage of their discretion when determining whether or not the evidence presents a reasonable possibility of substantiating the claim.

The fact that they have discretion to determine whether or not the new evidence would raise a reasonable possibility to substantiate the claim brings into play issues of current diagnosis, current symptoms and the reasons for the previous denial. There are other laws or instructions in the M-21 that specifically address the issue of current symptoms and current diagnosis that they will bring into play. Additionally, they might invent false objective standards of law. If my memory serves me correct the issue is whether or not the cancer is a soft tissue carcinoma.

If the report you are submitting as new and material does not have terminology that jumps off the page relating the diagnosis, symptoms or other medical principals needed for the raters to understand the claim, It would not surprise me if they argue that the records do not show a post surgical or current diagnosis of a soft tissue carcinoma and tell you in a duty to assist letter that you need to provide medical evidence of a current diagnosis of the soft tissue carcinoma or whatever condition you are seeking to have service connected. They will not schedule C&P exams nor will they take any other steps to advance the claim until you get them the evidence they ask for. I attached/pasted a scan from the section of a duty to assist letter that was sent to a veterans I worked with. The requirement of a current service connectable diagnosis or explanation of current symptoms is so central to the advancement of an open claim that I am sure it will become an issue when considering whether or not new evidence has a reasonable possibility of substantiating an already closed claim.

You can submit the new and material report along with any literature you feel will help the raters understand your claim. However, I prefer to bombard them with new doctor’s reports at the time I file new and material evidence with strong statements that include a nexus statement from a doctor. A nexus opinion from a doctor is not required to reopen a claim. However, I try to get nexus statements from a specialist when possible to avoid any more delays. Believe it or not raters have ignored nexus statements and refused to re-open claims when I got the reports from primary care doctors, forcing me to get reports from specialists. In your case the issue may not be nexus. It could be clarification of a diagnosis, or clarification as to specify that the veteran’s case involves a soft tissue carcinomas or other cancer that is service connectable.

Also consider that sometimes the raters consider a pre surgical diagnosis as “provisional” and if the same diagnosis does not appear in the post surgical reports, they will disregard the original diagnosis. Although, I feel this type of decision requires that they play doctor and is illegal, I have encountered this and chose to re-establish the diagnosis by submitting records with a current diagnosis of the original condition, rather than get involved in a lengthily appeal. If establishing the original diagnosis is an issue and the veteran is still being treated at a VAMC look for something called an active problems list in the veteran’s records. See if the diagnosis is still on the active problems list. Also, the veteran can request at any time that the VAMC provide him with his current diagnoses. A strong report would involve getting a specialist to review the medical file and re-establish the diagnosis. The raters can get real stubborn when it comes to re-opening a claim.

Edited July 28, 2012 by carlie
I edited 2 post just to make the font size larger for reading.

[free_spirit_etc]

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.

This is a very interesting point. I had usually thought of it in the opposite direction and go back to see exactly what the regulation says. Of course, I don't have near the knowledge or experience that you do with such issues.

What complicates this somewhat for me is that even if the regs were applied a certain way in a certain case doesn't mean they will apply the same way in a very similar case. You see a lot of that in the cases too - where the lawyer will argue that something that was decided in one case applies in their specific case. Sometimes the court agrees and sometimes it doesn't.

This is where knowledge and experience come in - the wisdom to know the difference.

ETA: Oh yes... also count me as a member of the Hoppy Fan Club!

Edited July 24, 2012 by free_spirit_etc

[free_spirit_etc]

Also thank you for not closing the thread and seeing the respectful nature in which Hoppy and I have interacted; I do respect his views and his latest reply most of all.

Thank you for your respectful arguments. Actually, I somewhat understood what Hoppy was saying - but by the third round of the argument I really "got it." The most important thing I got out of it was that sometimes we might get and idea that we think what won a claim, but that mind-set might make us overlook what really won the claim.

I am going to go back and re-read some of the things I have been reading to help my claim and see if I notice some things in a new light.

Without the interchange between you and Hoppy, I would not have developed a better understanding of some important points I needed to understand.

Thank you both!