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?

[free_spirit_etc]

Hoppy,

Recently reviewed the veterans case and in the list of evidence considered for the denial of the colon cancer claimed as rectal cancer associated to AO exposure, they only considered medical treatment reports from the VAMC from October 31, 2004 going forward. He was diagnosed with the cancer prior to that and had surgery on October 14, 2004 with two corrective surgeries thereafter for complications.

If the VARO never listed (i.e. considered) the evidence most pertinent to his claim, would that medical diagnosis and surgery report not be "new and material evidence" since it was never made available to a rater at the time of the decision (this being said, or paraphrased nearly word for word out of the legal books I have which quotes the statutes on what is now considered "new" and "material" evidence)!?!

----

I was just reading a case the other day where the Court said something that might apply to this. The case was about whether a widow would reopen a claim for accrued benefits - since reopening a claim requires new and material evidence; yet a claim for accrued benefits must be made on the record as it existed at the time of the veteran's death.

http://www.veteranslawlibrary.com/files/CAVC_cases/2012/Quattlebaum_09-3557.pdf

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 09-3557

PEGGY L. QUATTLEBAUM, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued September 28, 2011 Decided January 5, 2012)

The Court said:

"Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is

an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date

of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be

considered and therefore would not be material to the claim – fails upon examination. This is

because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"

38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the

beneficiary's death, even if such evidence was not physically located in the VA claims folder on or

before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there

may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's

possession at the date of the veteran's death (and therefore are considered to be in the file at the date

of death), yet have never been presented to the Agency decisionmakers. Any such document

submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify

as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not

previously submitted to agency decisionmakers."), and might also be material if it (along with

evidence previously in the record) "relates to an unestablished fact necessary to substantiate the

claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the claim.").

[Troy Spurlock]

I was just reading a case the other day where the Court said something that might apply to this. The case was about whether a widow would reopen a claim for accrued benefits - since reopening a claim requires new and material evidence; yet a claim for accrued benefits must be made on the record as it existed at the time of the veteran's death.

http://www.veteranslawlibrary.com/files/CAVC_cases/2012/Quattlebaum_09-3557.pdf

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 09-3557

PEGGY L. QUATTLEBAUM, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued September 28, 2011 Decided January 5, 2012)

The Court said:

"Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is

an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date

of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be

considered and therefore would not be material to the claim – fails upon examination. This is

because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"

38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the

beneficiary's death, even if such evidence was not physically located in the VA claims folder on or

before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there

may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's

possession at the date of the veteran's death (and therefore are considered to be in the file at the date

of death), yet have never been presented to the Agency decisionmakers. Any such document

submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify

as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not

previously submitted to agency decisionmakers."), and might also be material if it (along with

evidence previously in the record) "relates to an unestablished fact necessary to substantiate the

claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the claim.").

That is great research and information!!! Thank you for this and your previous post...very good analysis of the discussion and point of view!!!

[Berta]

I am a little lost trying to follow all this but I do need to make 2 points:

“colon cancer claimed as rectal cancer associated to AO”

These are not AO presumptive cancers. If this stems from a Soft Tissue sarcoma-(Not carcinoma) (there are about 34 STS cancers on the AO presumptive list, and STS cancers are fairly rare) that will take an IMO to fully explain to VA that a AO STS cancer ( a doctor would have to identify the actual STS type) has caused the colon and/or rectal cancer,with a full medical rationale.

Also I disagree with free spirit's statement:

“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. “

in this respect. The regulations control how the VA decides every claim but every claim has different evidence,specific solely to the disability the veteran is making the claim for.

If VA doesnt apply the regs properly,they have committed a CUE. Actually bonafide CUEs really dont happen that often or we would sure be filing more CUE claims against the VA.

Similiar cases have no weight at all with the VA in deciding any specific claim.

It is medical evidence that awards a claim. Even if the VA commits a major VCAA error ,in applying the VCAA regulations, yet the evidence still favors the veteran, the veteran will succeed.

As to accrued benefits -the regulations for survivors are not similar in any way to those regarding veterans claims.

Accrued benefits must be applied for within one year after the veteran's death. The only exception is regarding Nehmer .

The court stated:

“Thus, pursuant to this regulation, there

may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's

possession at the date of the veteran's death (and therefore are considered to be in the file at the date

of death), yet have never been presented to the Agency decisionmakers “

That was true in my claim for accrued.It IS rare and takes thoroughly accessing what is in the deceased veteran's file and what isn't there but should be there. When I submitted what should have been in my husband's medical files but was Not there,I won my accrued claim. It was in VA's possession but not available to the “decisionmakers” until they got it from me. I had gotten these records from the VA doctor who treated my husband and he was stunned that VA didnt have copies of these significant medical records in his VA med rec files.He had treated my husband for over 2 years with extensive therapy, gave him

multiple psychiatric tests and hypnosis sessions.

The VA shrink my husband had prior to him for many years was the VA employees shrink and didnt document a thing because he feared it could somehow interfere with any veteran or civilian's VA employment. He was a lovely man but It was quite a battle for me to get my husband (after having a major stroke), to the Real PTSD VA shrink (psychiatrist) because he didht work for the VA anymore, SSA had already awarded him solely for PTSD ,the initial VA shrink didnt document anything and he didnt have a clue on treating PTSD anyhow.

Survivors often have lots of leg work to do. I hope all the vets here have made sure their spouses are fully aware of their disabilities ,treatment, med profiles and medical records and will know where all that stuff is if they die.

Edited July 28, 2012 by Berta

[carlie]

For all that are following in this thread a good refresher for study is at the link below.

Also, of importance to keep in mind is that no matter what -

VA owns the scales and it takes good evidence and proper rebuttal to

overcome and sway doubt towards the claimants favor.

Relative Equipoise resulting in application of the BOD, is one of the most

important regs we have, to help get issues granted.

M21-1MR

http://www.benefits.va.gov/WARMS/M21_1MR3.asp

Chapter 5 - Evaluating Evidence and making a Decision

[Hoppy]

Troy, Free, carlie any other concered readers

The thought of any accrued or retroactive benefit did enter my mind. However, I did not address this because Troy was addressing new and material only. The information you added does clarify some issues when trying to get an earlier effective date. It is always a good idea to add perspectives as yoiu and carlie did. The possibility that there was some significant proceedural error that caused the pre-surgical report not be be in the file or properly addressed could result in a CUE is a consideration. However, that missing medical report would need to be the difference between winning an losing the claim. Additionally, the CUE aspects had been considered by Troy.

As far as new and material goes

As far as weighing medical evidence goes the requirement when re-opening a claim is more liberal than the equipoise rule. I did not go into much detail on my previous post other than to say I feel raters take advantage of their discretion. A reasonable possibility in my opinion is a lower threshold of evidence than the equipoise rule.

“Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).”

“In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992)”

The reason I feel you should prepare for the worst by getting strong medical opinions and not assume they will re-open a claim is because even in view of the above cases the RO refused to re-open my angioedema claim even though I provided them with evidence of both an inservice and post service diagnosis of the same condition with the same symptoms. The reason for the previous denial was that I was not treated in the military for the claimed post service condition. Additionally, they refused to re-open a claim I was working on even though I obtained an opinion from the veteran’s primary care doctor that after a review of the entire medical file including the SMR the veterans condition was caused by military service. The RO invented some false objective standard that was not even supported by any CFR to say that the primary care doctor’s opinion was not credible. Rather than wait for an appeal to re-open the claim I filed a notice of disagreement on the failure to re-open and most importantly I obtained another opinion from another VA staff specialist. They usually award the claim date based on the date the new and material is submitted, which they did in this case based on the report from the VA staff specialist. As I have said on many occasions before an RO rater I know who rated claims for 20 years jumped sides and became an SO for a large organization because he was of the opinion that RO raters were not properly trained.

[Troy Spurlock]

This thread right here and all the responses therein is a PERFECT example why this forum is so important and useful to all veterans.

The different perspectives, ideas, and citations given based on everyone's individual and collective experience is what makes this forum an invaluable resource, and I am glad to have been a part of it over the years; and I plan to contribute more as time goes on.

Thank you all for your replies, especially Hoppy and Berta and Carlie as well...the latter two I have been more familiar with over the years and Hoppy, you're new to me but you're A-Okay in my book!

Once I get a draft of my argument prepared, with the veteran's permission (not using his name, etc.)...I may post it to get feedback before sending to the VARO. If not the whole draft, maybe parts I need fine tuning.

Thanks again, and please...everyone, keep the ideas, thoughts, and case citations coming because they are far more helpful than you know.

Sincerely,

TS