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]

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

Although the Board has an obligation to

provide reasons and bases supporting this decision, there is no

need to discuss, in detail, the evidence submitted by the

appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378,

1380-81 (Fed. Cir. 2000) (the Board must review the entire

record, but does not have to discuss each piece of evidence).

The analysis below focuses on the most salient and relevant

evidence and on what this evidence shows, or fails to show, on

the claim. The appellant must not assume that the Board has

overlooked pieces of evidence that are not explicitly discussed

herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the

law requires only that the Board address its reasons for

rejecting evidence favorable to the claimant).

For reasons stated below if the diagnosis noted in the VAMC reports was not sufficiently clear to identify a specific diagnosis of a presumptive AO cancer then there was no evidence facially and materially favorable to the veterans claim. Furthermore, they had no obligation to develop the claim based on a vague association in the VAMC reports of the cancer to a presumptive AO condition. I have seen no new laws over writing Goober v. Derwinski

Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty

to assist' is not a license for a 'fishing expedition' to

determine if there might be some unspecified information which

could possibly support a claim . . . [and] this duty is limited

to specifically identified documents that by their description

would be facially relevant and material to the claim").

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

Nothing is open to request the VA to re-open a claim. You must show that they failed to consider identified documents that by their description were facially relevant and material to the claim. So far all you have stated is that the veteran “could” have had a presumptive cancer, without specifically identifying the exact diagnosis provided by the VAMC and how it matches up to the AO laws.

As a general rule, "when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. § 7104(b) (emphasis added). The purpose of § 7104(b) is "to preserve the finality of Board decisions." Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998). There are only two statutorily created exceptions to the rule of finality for veterans claims in § 7104(b). Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc). First, under 38 U.S.C. § 5108, "f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook

“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.”

If the evidence was included in the VAMC reports showing the diagnosis for the claimed condition and the VA included the VAMC records on the evidence list then the evidence was cited. The question is whether or not they need to give rational. It appears you are claiming there was insufficient rational to show that the medical evidence was considered. There are many types of claims in which the VA would not be required to discuss the medical evidence for the purpose of denying a claim. What if the claim was denied because the veteran did not establish AO exposure? Sometimes they do not take the time to write a denial that is coherent. Arguing that there was a poorly written denial does not equate to the type of argument that you can count on to win a claim. It sounds like the claim was denied without a C&P exam. I have seen this happen in many claims in which the claimed condition and the diagnosed condition (upon which a rating would be established) used different diagnostic terms.

The veteran’s option was to file a notice of disagreement and get an SOC. The SOC’s should be better developed than the denial. The VA considers this a process of perfecting a claim. By arguing that the denial was poorly written might cause them to write the actual reason the claim was denied. This would put you right back in a position where new and material evidence will be required. You have not provided enough information regarding the diagnoses and applicable laws to even guess that there is a valid claim. It appears you are considering the veteran was exposed to AO. Thus, you address the issue of medical evidence.

“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.”

You have made vague references to cancer that may have been misdiagnosed or not properly identified by the VA clinicians as a presumptive AO condition. It appears that you will be arguing that the medical evidence not discussed would show that the veteran has a condition that “could” have qualified as a presumptive condition. Can you cite the specific diagnosis that was made and recorded by the VAMC and the presumptive laws that apply to that specific diagnosis?

If there was any question as to the diagnosis being the exact diagnosis cited as a presumptive AO condition this could result in a denial that did not specifically address the medical evidence. The fact that they did not take the time to write an additional sentence in the denial saying that the veteran was not diagnosed with a presumptive condition does not result in the VA reopening the claim. “could qualify” needs to be identified as “does qualify” when trying to re-open a claim. “to be human is to er” The raters are not required to read into medical evidence for the purpose of finding other applicable diagnoses (fishing). Claims are identified by diagnosis or symptoms. In a cancer claim the specific diagnosis made by the clinicians would need to be very accurate. If the VAMC diagnosis was vague arguing this point without new medical evidence showing the correct diagnosis is not a reliable argument. Without new medical evidence you’re your argument is that the rater failed to fish for the proper diagnosis prior to the denial. If the diagnosis made by the VAMC is not specifically shown in the law as a presumptive condition even if they were to reopen the claim they would deny the claim again based on the original vague diagnosis made by the VAMC. The fact that you argue that it is possible that his condition is a soft tissue cancer is not a reliable argument. You are not a doctor and a possible condition may not result in sufficient evidence to even develop the claim. If have seen this type of argument fail to advance a claim on numerous occasions. When the VAMC makes a vague diagnosis your options are to go back to the VAMC and get a clarification or get an IMO. In other words get new evidence showing that the diagnosis is specifically a presumptive AO condition .

Had the SO preloaded the research for the claim this could have been dealt with. Most service organization do not require that SO’s read the medical evidence prior to filing a claim. They file claims blindly and that is the way they like it. If you are the type of guy who wants to preload the evidence, I hope you get the job.

Failing to file a timely appeal and now finding the veteran in a position to appeal a closed claim would be best advanced by filing new and material evidence rather than relying solely on an argument that the prior denial was poorly written. If it were me I would surround them with evidence including new and material medical evidence.

[Hoppy]

Troy,

My angioedema was first diagnosed while I was on active duty. It is service connectable because it onset proximate to service. If it had onset after service i would have been shi__ out of luck. Alot of veterans have showed up on hadit trying to get it service connected without in service onset and they have all failed to this date. Even with it being diagnosed in service the VA fought me for 8.5 years. The condition is triggered by common industrial chemicals that i was working with in the military and would encounter if I lived a normal life stlye. I am basically a bubble boy. I have wound up in an ER over twenty five times because employers and friends subjected me to triggers without notifying me. My sense of smell is not adaquate to determine when the chemicals are present. A labor law attorney and ER doctors advised me not to engage in any activity that might trigger an angioedema event. I have full blown events with severe facial swelling and throat involvement. While in the military the events involved less severe symptoms. The progression from mild to severe events can not be related to any post service intercurrent events. This was determined by the center for disease control in Atlanta Georgia.

[Hoppy]

Troy,

By the way there are about five diffent forms of the disease. There are numerous BVA cases in which each of these forms were service connected. All either by in service onset or aggravation. I did not have the condition prior to military. Also, if you read some success stories I have also wrote position papers that won cases that lawyers lost. I have also had opinions from psychiatrists trashed just by exposing the speclulative nature of their determinations. In some cases I got IMO's in others the speculation was so obvious that the VA trashed the bogus C&P exams and gave weight to treating exams.

[Berta]

Hoppy-your info was EXCELLENT !!!! And right on the mark!

and one reason claimants fail to succeed on trying to re-open claims..... ,

because they misinterpret what New & Material evidence actually is.

Stretch Thank you- I have been trying to make this point for years to someone !!!!:

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

And the CAVC will not accept accept more evidence.

That is why a CAVC remand is better then a denial- it opens the door for more evidence to come in at the VARO or BVA level.

Troy- some thoughts to your posts :

"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? “

How relevant was it to the claim?

Example- a vet I know got a “buddy” statement from someone who didn't work in his unit, could not give an eye witness account of what test the veteran claimed he was in,that gave him a current chemical disability, but who told VA of a chemical he ,the buddy, was exposed to around same time and at same military base.

The BVA rejected the Buddy statement as having no relevance at all to the actual claim they were deciding.

Another vet I know , against my wishes, is re-submitting a lengthy IMO he has that VA has rejected already. I read the IMO and it does nothing at all to advance his claim. His point is the denial didn't properly consider some of the IMO statements.

None of the IMO statements help him,yet he insists on re submitting cumulative and redundant evidence that VA has already considered. Th IMO barely even followed the IMO criteria I posted here at hadit and contained some speculative remarks that have nothing to do with his disability.

Troy,

I believe you are referring to the Veterans Benefits Manual by NVLSP.I have purchased the VBM since 1991 and have won all my claims due in great part to the VBM and to careful research.(I also go 3 IMOs too for one of my claims)

“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). “

I disagree with all of above - One can certainly file FTCA (but there is a Statute of Limits) and/or 1151 ,(no time limit) if a misdiagnosis is an issue, and support this with a strong IMO. In the VBM and also here in our FTCA forum is a wealth of info on FTCA and 1151 claims. I have put 1151 claim templates and SF 95 info in our FTCA/1151 forum here and my personal experiences and advise on these issues, as a successful FTCA/and 1151er.

I know another vet I met at the local VAMC many years ago who insists he has a Section 1151 issue the VA never decided.

But he never filed a formal Section 1151 claim.He still has the one I wrote for him many years ago-and he never mailed it. He filed his SF 95 one day after the SOL ran out and lost that too. He said the local vet reps refused to help him but I know those reps well, he never went to see them.

He still thinks the VARO somehow will catch the malpractice and then send him some money,against my advise.

My point to you is that the 1151 issue can be one paragraph long, short and sweet, but the formal claim must be filed that well because VA never infers or decides this type of issue until the veteran formally claims disability under 1151.

There is no claim form. A simple letter following my 1151 template here at hadit will do.

BVA citations don't help most claims unless they regard specific legal interpretations. The VA will not consider them as relevant if they regard diagnosis issues or similar vet's disability claims.

Stretch also said:

“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. “

Also, we here at hadit often are expected to do things no VSO or attorney would ever do,as we take an educated quess and give advise without often knowing what the denial actually said as to the Reasons and Basis nr how the VA or didnt handle the evidence.I am still on a vacation but when return to hadit,I will be adviosing mre vets and particulariy all widows to get a vet rep then if denied ,get a lawyer, unl;ess we have enough info here from them to really be able to see why they were denied and what they can do about the denial.

Sometimes what we are told here that the VA said in a letter isn't the way it really is because the VA writes decisions (as well as the BVA and court)in a way that often has to be assessed word for word.

As to this veteran you are helping-I am familiar with the STS cancers and know that there can be many medical terms sometimes for one type of cancer.

He needs a definitive diagnosis,however, and VA needs that from a doctor and I suggest getting an IMO from a real doctor in this case , a doctor who can also opine on what appears to me to be a possible potential 1151 issue.

Edited June 25, 2012 by Berta

[Troy Spurlock]

Thank you all for your very informative replies!!! Especially you Berta...kind of you to check in and reply while you're on vacation.

All of your views are exactly what I needed in order to put this matter into perspective and the proper context before deciding how to proceed. On that note...I will take everything and mull over it and come back with more information and a plausible course of action in this matter.

[Troy Spurlock]

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

Although the Board has an obligation to

provide reasons and bases supporting this decision, there is no

need to discuss, in detail, the evidence submitted by the

appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378,

1380-81 (Fed. Cir. 2000) (the Board must review the entire

record, but does not have to discuss each piece of evidence).

The analysis below focuses on the most salient and relevant

evidence and on what this evidence shows, or fails to show, on

the claim. The appellant must not assume that the Board has

overlooked pieces of evidence that are not explicitly discussed

herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the

law requires only that the Board address its reasons for

rejecting evidence favorable to the claimant).

For reasons stated below if the diagnosis noted in the VAMC reports was not sufficiently clear to identify a specific diagnosis of a presumptive AO cancer then there was no evidence facially and materially favorable to the veterans claim. Furthermore, they had no obligation to develop the claim based on a vague association in the VAMC reports of the cancer to a presumptive AO condition. I have seen no new laws over writing Goober v. Derwinski

Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty

to assist' is not a license for a 'fishing expedition' to

determine if there might be some unspecified information which

could possibly support a claim . . . [and] this duty is limited

to specifically identified documents that by their description

would be facially relevant and material to the claim").

Just a quick note on your points here...

McLendon v. Nicholson, 20 Vet. App. 79 (2006) reiterated under the VCAA that a VA exam and/or opinion is required if there is:

1. competent evidence of a current disability or persistent or recurrent symptoms of a disability;

2. evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period; and

3. an indication that the disability or persistent or recurrent symptons of a disability may be associated with service or with another s/c disability; but

4. insufficient competent medical evidence on file for VA to decide the claim.

Nowhere in this veterans decision was there any indication that he was given a C&P exam for his rectal cancer, rather just the VAMC medical reports were referenced.

A C&P exam is required as a part of developing and processing a claim for disability, is it not? According to this case (and others), it is.

Also, in Green (Victor) v. Derwinski, 1 Vet App 121 (1991) held that the duty to assist requires "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."

In Gobber, was this case referenced thus overturning this decision (I have not had a chance to review Gobber, and you clearly have so I thought I would ask)?

http://www.nvlsp.org/images/TVA%20JanJun08sample.pdf ("Top 10" Court Cases for Advocates)

TS