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?

[carlie]

Carlie, I have discovered, as you guessed, a lot of the information will take 2-3 weeks to process into the system. i was awarded 30% for my legs in 2004 after being run over by a 105 Howitzer in the service. The timeline after that- (my best guess)

August 2006 claim for secondary

denied that fall/NOD

appeal to BVA

BVA tv hearing early 2007

remand to RO

denied in 2007

BVA appeal into 2008

denied

appeal to CAVC

remanded to BVA late 2009

remanded by BVA to RO August 2010

RO denies August 2011

back to BVA Feb. 15, 2012

BVA grants April 4, 2012

Thanks - I will look forward to reading the April 4, 2012 decision to grant once it makes it to the internet,

perhaps you will feel comfortable posting a link when that time comes.

It might end up being helpful to others that are in close circumstance.

What Hoppy did is specifically refute line by line the assertions made in the denial of August 2011 in terms that would make Perry Mason proud and with documented supporting evidence.

I don't remember reading through the August 2011 denial.

Sure sounds like Hoppy was real helpful in overcoming "the assertions" made in that decision.

We always have to attack any untruths in the evidence of record and get the attention properly

focused on the "documented supporting evidence".

​This is certainly a key element to winning appeals.

Prior to that, (and I will generalize) I had a nationally known VA attorney who could put you down in two heart beats (complete with profanity) but could not get off his ass to spend an hour a month for you.

Once an attorney or firm takes a case, whether SSA, VA, car crash, etc...

the majority of them spend VERY little time with the client, IMO I would say it would be quite rare for them to

spend much time either in person, phone or emails.

Thank God for guys like Hoppy. I am stunned still today on how much time he spent on me through the goodness of his heart.

I feel you were very fortunate to have Hoppy's assistance in your appeal.

My appeal might have gone through BVA in 2010. the IMO was strong enough. My crack national atty got it remanded from CAVC back to BVA for not referencing my SSDI records. Then he wrote BVA he waived their right to see them. They then remanded my appeal to the RO for the SSDI records. It cost me two more years and financial ruin and yes, I am bitter toward him....

As long as the lawyer/firm gets a remand - they have met THEIR goal.

JMHO

[carlie]

the issue was service connection for physical pain to MDD.

dean,

So you increased from 30 percent to IU due to secondary SC of MDD

(from pain) as a result of SC'd disabilities ?

Is this correct or did they grant/increase SC for additional conditions?

Troy -

I'm sorry to have trampled over your topic.

Perhaps we can continue dean's situation as a new topic.

Also, a big ditto on Pete53's reply. I too am quite disappointed the job did not pan out.

I am disappointed for the veterans that will not receive your assistance as I feel you would have

been beneficial to argue their issues.

BUT - I am not too sorry for you in this not working out.

I feel that this specific job was not meant for your best interest and they would have tried to taint you.

The exact right thing/place for you will come and you will do great things for many VBA claimants.

[deanbrt]

As long as the lawyer/firm gets a remand - they have met THEIR goal.

Yes.

perhaps you will feel comfortable posting a link when that time comes.

Too personal.

so you increased from 30 percent to IU due to secondary SC of MDD

(from pain) as a result of SC'd disabilities ?

Is this correct or did they grant/increase SC for additional conditions?

They increased me to 80% scheduler for the now service connected secondary MDD and then granted me IU for the balance. I have been on SSDI since December of 2006...

[deanbrt]

I have shared with Carlie via private message what Hoppy wrote on my behalf to BVA.....

[Troy Spurlock]

Also, a big ditto on Pete53's reply. I too am quite disappointed the job did not pan out.

I am disappointed for the veterans that will not receive your assistance as I feel you would have

been beneficial to argue their issues.

BUT - I am not too sorry for you in this not working out.

I feel that this specific job was not meant for your best interest and they would have tried to taint you.

The exact right thing/place for you will come and you will do great things for many VBA claimants.

Thank you Pete and Carlie...you are both correct, especially that last part Carlie.

My wife and I, and other veterans (and friends) I work with at the Sheriff's Office (to include the Sheriff) believe just as you stated. That my passion and devotion for helping veterans would be stifled by the very system I fight against; so I am better off on my own.

-----

Carlie,

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.

------

To the individual whom Hoppy helped and stated he refuted the VA "line by line," it may come to surprise the both of you...but I do exactly the same thing. My correspondence with VA on behalf of the veteran can get rather lengthy in refuting each unsubstantiated position of theirs...then again, the VA brings it on itself.

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.

-----

Carlie,

No apoligies on changing subjects within the thread, no harm no foul.

----

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)!?!

----

Thank you all for your contributions to this disucssion; and your kind words about my not getting the job as a VSO for my county.

Over 4 years I have tried 3 times...last time was the last.

I can better serve veterans on my own rather than under the umbrella of the VA "system" of their policies and procedures.

Respectfully,

TS

TS

[Chuck75]

VA and evidence on file vs. new and material.

A problem that I see is that the VA has made general statements concerning review etc. of records in the past that taken one way would lead a veteran to think that the VA did in fact review the records. References to specific records favourable to the claim were often non existent, even when the records were clearly in the VA possession, and included in a veteran's copy obtained from the VA.

Thank you Pete and Carlie...you are both correct, especially that last part Carlie.

My wife and I, and other veterans (and friends) I work with at the Sheriff's Office (to include the Sheriff) believe just as you stated. That my passion and devotion for helping veterans would be stifled by the very system I fight against; so I am better off on my own.

-----

Carlie,

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.

------

To the individual whom Hoppy helped and stated he refuted the VA "line by line," it may come to surprise the both of you...but I do exactly the same thing. My correspondence with VA on behalf of the veteran can get rather lengthy in refuting each unsubstantiated position of theirs...then again, the VA brings it on itself.

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.

-----

Carlie,

No apoligies on changing subjects within the thread, no harm no foul.

----

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)!?!

----

Thank you all for your contributions to this disucssion; and your kind words about my not getting the job as a VSO for my county.

Over 4 years I have tried 3 times...last time was the last.

I can better serve veterans on my own rather than under the umbrella of the VA "system" of their policies and procedures.

Respectfully,

TS

TS