Evidence Used To Deny Claim

[Charleese]

Hi everyone,

In its denial of my huband's 1958 claim the Evidence cited by RO was from a BVA denial decision and his 1983 application.

The BVA decision dealt with an earlier effective date of a (increase) compensable evaluation from 1983-2000. It had nothing to do with his 1958 claim, because 1958 claim had not been developed yet. Matter of fact his 1958 claim wasn't developed until after this BVA decision was made (this decision was made on November 30, 2005). In this decision BVA remanded 1958 claim to RO for development. RO denied his 1958 claim on June 17, 2006. Am I correct in stating that BVA had no jurisdiction over this claim and that their decision can not be used. Please respond.

Also, his 1983 application was previously considered in establishing service connection for his left knee disability. Shouldn't this application be deemed duplicate evidence. The reason why I am questioning this is because in their denial of his 1958 claim the service medical records that he sent them they state: "The recently submitted copies of your service medical records have been previously considered in establlishing service connection for your left knee disability, and are deemed duplicate evidence. They have no bearing on establishing an earlier effective date as they provide no evidence that you filed a claim with VA, at any time prior to September 9, 1983". If they can use this for service medical records, couldn't the same be said for his 1983 application. Please respond.

Thanks!

Charleese

[Hoppy]

Charleese

I am not sure I understand the questions.

When you send them the SMR it is always possile that they already got the SMR without even telling you until the SOC is sent. If you sent them the SMR prior to the SOC and they already got the SMR on their own then your sending it would be duplicative.

It sounds to me like he was service connected for something in 1983 and you are trying to get an earlier effective date by submitting the SMR. What they want is evidence that an application was submitted prior to 1983. Having medical evidence that was in the SMR that was already reviewed will not result in an earlier effective date. The exception might occur if there were factual errors such as them claiming that there was no knee injury in the SMR and then you read the SMR and found a knee injury.

Are you trying to say that they used the the SMR in the 1983 decision and because when you submitted the SMR they said it was duplicative and from the fact that it was held to be duplicative that that proves that there was an claim processed that predated the 83 claim? If so, then I say not necessarily. They could have been telling you they already aquired the SMR prior to you submitting your copy of the SMR for the 1983 decision.

[Charleese]

Charleese

I am not sure I understand the questions.

When you send them the SMR it is always possile that they already got the SMR without even telling you until the SOC is sent. If you sent them the SMR prior to the SOC and they already got the SMR on their own then your sending it would be duplicative.

It sounds to me like he was service connected for something in 1983 and you are trying to get an earlier effective date by submitting the SMR. What they want is evidence that an application was submitted prior to 1983. Having medical evidence that was in the SMR that was already reviewed will not result in an earlier effective date. The exception might occur if there were factual errors such as them claiming that there was no knee injury in the SMR and then you read the SMR and found a knee injury.

Are you trying to say that they used the the SMR in the 1983 decision and because when you submitted the SMR they said it was duplicative and from the fact that it was held to be duplicative that that proves that there was an claim processed that predated the 83 claim? If so, then I say not necessarily. They could have been telling you they already aquired the SMR prior to you submitting your copy of the SMR for the 1983 decision.

Also, the BVA decision dealt with an earlier effective date of a (increase) compensable evaluation from 1983-2000. It had nothing to do with his 1958 claim, because 1958 claim had not been developed yet. Matter of fact his 1958 claim wasn't developed until after this BVA decision was made (this decision was made on November 30, 2005). In this decision BVA remanded 1958 claim to RO for development. RO denied his 1958 claim on June 17, 2006. Am I correct in stating that BVA had no jurisdiction over this claim and that their decision can not be used. Please respond.

Hi Hoppy,

What I am saying is that when he tried to use SMR they said this was duplicate evidence. The SMR that he was using was to show objective medical evidence that it was as least as likely he would of filed a claim in 1958. However, the point I was trying to make about 1983 application is that VA used it in a previous claim decision, and now they are using it again in his 1958 claim. Wouldn't this be duplicate evidence and since he couldn't use his SMR, why should they be allow to use his 1983 application.

Thanks!

Edited August 13, 2006 by Charleese

[Charleese]

Is there anyone who can respond to this post. I would appreciate it.

Thanks!

[Hoppy]

I still do not understand why it is important to you to debate jurisdiction of the BVA remand. A remand actually kept the claim alive. The BVA could have denied the claim.

Using medical evidence such as the SMR to show that a claim was "more likely than not" filed, might not be supported in VA law. The VA could require that the exact forms for a formal claim be in their file inorder for them to acknowledge a valid claim. This is what I have heard needs to be done. DO you have a Service Officer? You need to run this by a SO.

You refer to the application as evidence. What are you talking about specifically. An application is an application. It sounds to me like they might be saying that no claim was filed prior to 1983. What did the remand say. Was it for the RO to look for evidence of a claim and then the RO denied the 1958 claim again saying no evidence of an application exists for a claim filed in 1958.

The VA can say evidence is duplicative anytime they want if it is supported by the facts. You can submit duplicative evidence any time you want. They will just say that it is duplicative if the file already has such evidence in it and thus is supported by the facts. Just because the VA says that evidence in a claim was duplicative does not set a precedence that they can not use evidence from a previous claim in a subsequent claim. There is no rule that I know of disallowing the VA from using the same evidence from a previous claim in a subsequent claim. Once again you need to get a service officer to explain this to you.

Your understanding of the way this system works appears to me to be confused. I am reluctant to give you advise becuase it sounds to me like you need a Service Officer to sit down and read the entire remand and denial and explain this to you. This is my best advice at this time.

[Hoppy]

Charleese

One thing that I have been working on is the possibility that a veteran be given an earlier date of claim if in fact no post service degradation was used to rate the condition. Thus, the rating was based on the SMR symptoms. This is not the current state of law as far as a know and I am talking to A senator about this type of claim. My premise is that the veteran received bad information or insufficient information as to how to advance a claim at the time of discharge. It upgrades the argument that you are making that the in service symptoms were more likely than not to have caused the veteran to file a claim, had the veteran had competent advice as to how to advance a claim with the VA.

I will keep posting to hadit on this issue if I make progress. This happened to me on my knee claim. It was rated at "0" percent at the time of my discharge and went unappealed by my SO. Ten years later I filed for a post surgical convelence rating and was given 10 percent by the BVA based on the symptoms noted in the SMR. If my SO was competent he would have appealed the "0" percent rating at the time of discharge.

[john999]

Hoppy

If I had a competent SO at the time of my discharge I would have gotten 100%. I got 10%. It still pisses me off 35 years later the way I was treated and I consider myself lucky to have even gotten 10% in view of the hostile atmosphere that existed at the time for vets with mental/emotional problems from service. In my day unless you were psychotic you got nothing or maybe 10%. You had to be chewing the carpet to get the correct rating . I never even heard of TDIU or any of that stuff for years. My SO's never brought it up and I believe they were in cahoots with the VA on this.