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?

[Pete53]

I filed in June 1991 and my experience was they might have seen evidence but ignored it. I had medical evidence that was in my SMR's that should have granted 100% but I needed two private IMO's and three C&P's and the comment when I was granted 100% P&T in Nov 1996 that the award should have been made many years ago. Even than the award I should have gotten for an S rating for Housebound was not given till I asked specifically although it was supposed to have been considered with the 100% was not.

Troy do you take Veterans to be their Service Officers that are not in your state. My current one took over for Larry Payne a Hadit Member and does not even return email or phone calls.

[Troy Spurlock]

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.

Thanks Berta!!!

Unfortunately I did not get the job...

Honestly I should have known better to even apply because this bureaucracy simply does not want someone like me truly helping veterans; and it's a system I despise...which is why I do what I do in fighting it in getting veterans the benefits they earned as deserve!

I'm better off doing this on my own as I always have been and will continue to be just as successful.

TS

[carlie]

Thanks Berta!!!

Unfortunately I did not get the job...

Honestly I should have known better to even apply because this bureaucracy simply does not want someone like me truly helping veterans; and it's a system I despise...which is why I do what I do in fighting it in getting veterans the benefits they earned as deserve!

I'm better off doing this on my own as I always have been and will continue to be just as successful.

TS

Troy,

ALL of the service orgs. want the reps to play ball - - their way !

[Troy Spurlock]

Troy,

ALL of the service orgs. want the reps to play ball - - their way !

Carlie and Berta, you're two of the most knowledgable and wise individuals on this board that "get it and highly respect.

Thank you!

--Just learned that the hiring decision was political vs. merit, and that one of the interview panel members who was in my corner should be reaching out to em soon. Really sad that government agencies at any level, county - city - state - or federal DO NOT care about hiring QUALITY PEOPLE to defend the rights of veterans.

TS

Edited June 30, 2012 by Troy Spurlock

[Hoppy]

The outdated rules argument may not work to re-open a closed claim. Consider that the rating schedule is not considered to be applicable to all claims at all times and there is flexibility built into the schedule which the RO may have ignored and would have allowed for the BVA to change a rating decision.

I am not sure where you are trying to go with the outdated regulations argument as it relates to the current veterans claim. Remember you are trying to open a closed claim. As far as I know, proving that the rating schedule was flawed or the medical evidence was flawed at the time of the original denial will not result in a CUE. As far as I know, you need a CUE or new and material evidence to reopen a closed claim. Berta, posted a court case many years ago explaining, from what I remember, that even in a case where the original decision upon which a claim was decided is found to have involved inadequate laws resulting in the law being changed either by the VA or by a later court decision does not result in a CUE. In this instance I would suspect the claim could be re-filed as a new claim. I could not find the reference to the case Berta posted. However, I will keep looking for it.

Consider that the VA only service connects chronic conditions. Thus, every service connected claim is chronic for a chronic condition. However, many have varying degrees of severity and frequency of symptoms. The rating schedule is dominated by various ratings for chronic conditions. The various ratings are for different symptoms and the requirement for medication. I posted the rating schedule for FMS below. The fact that they show an episodic 20% is specifically associated with symptoms and I do not see in any way how the recognition of episodic symptoms in the rating schedule for a chronic condition presents any contradiction to the recognition that FMS is a chronic condition. It appears the VA is of the opinion that FMS has a variety of symptoms and frequency of symptoms. Did they tell you that they are wrong and that all FMS claims should be rated at 40%? If so you could have a full time job working FMS claims. When I first came onto hadit I had a full time job because the VA did not automatically re-examine veterans diagnosed under the DSM II. The DSM II was considered a broken and inaccurate diagnostic model. The DSM III and DSM IV use an entirely different system for making a diagnosis. This often resulted in a different diagnosis.

By the way if you think the rating schedule is bad now, you should read some claims prior to 1998. The rating schedule was so full of holes getting a rating was a total crap shoot. The VA figured out there was a problem and re-wrote many conditions in which rating were based on vague terms such as infrequent and frequent. Some claims benefited from the vague terms and some were hindered. The changes in the rating schedule eliminated the use of vague terms and replaced them with specific counts of episodes. The new schedule would say things like 3 episode per week or 4 episodes per year. You will still run into veterans rated prior to 1998.

Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, is to be rated 10 percent disabling if the symptoms require continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5025.

[Troy Spurlock]

Hoppy...you certainly have a wealth of knowledge and information, which I appreciate, and forgive me for noting this, but you're not following along with the timeline of the discussion.

The outdated regualations, the medically inaccurate CFRs covering certain conditions (like FMS), etc. that I brought up were mere examples of other issues that I have come across myself or in helping others in response to things others said in contributing to this discussion and NOT related to the claim I am working on now for the other veteran I originally spoke of in the original posting.

Perhaps when I get some research together, on this claim I am working on, I will start a new thread specific to and on topic with that discussion (no sidetracks), to include the EXACT wording of the denial and list of evidence considered...and then perhaps we can all move forward from there; that way I may better gain from everyone's individual and collective experience in their thoughts and opinions.

Thanks!

TS