Can New Evidence Be Submitted With A Motion To Reconsider To The Board

[lotzaspotz]

Or are we better off just asking the attorney to appeal to the Court (which I know does not accept new evidence). Has anyone here had any recent success with a reconsideration request to the Board?

[john999]

New evidence is a must if you file for "reconsideration". I did it. However, the VA changed the effective date on my new rating based on when they got the new evidence.

[Berta]

If the VA had totally ignored any evidence you had, and never listed it as evidence or referred to it at all, evidence which you feel is probative to the claim, that can become N & M evidence, since they never acknowledged it....in my opinion....

unless that evidence is medically outdated.

This widow's rep file a Motion for Reconsideration with the BVA because ALS had been added to the presumptives under 38 C.F.R. § 3.318 (2008).

Also she had applied for accrued benefits within one year after his death and had continued the veteran's ALS claim.

"Inasmuch as the medical evidence attributes the Veteran’s death to a presumptively service-connected condition, ALS, service connection for the cause of his death is warranted. Accordingly, the Appellant’s claim is granted."
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp09/Files2/0919512.txt

The N & M evidence was the regulationtion adding ALS to the VA presumptive list.

The BVA Appeals pamphlet (available at the BVA web site, as well as ,I think, information with the I-9 form, has more info on a Motion for Reconsideration being filed against a BVA decision

[lotzaspotz]

Thank you. This is a pending claim since 1993 that's been remanded several times. The Board now seems to think that even though the veteran suffered from an incisional ventral hernia that was rated 0% compensable, that did not mean that the abdominal wall had weakened. I didn't think it was possible for an abdominal hernia to develop unless the wall had weakened to allow such a condition to develop in the first place. Plus, mesh was not used in the original surgery in 1991 to reinforce the wall. A belt was not prescribed at the time.

The veteran had three C&P exams, one in 1994 said no hernia there, but a subsequent exam six days later at the base hospital by the surgeon who performed the 1991 surgery said there was a hernia developing, then the C&P in 1998 said there was a hernia there, then another in 1999 by the same doctor who performed the one in 1998 said there was no hernia, but he never checked his findings from the year before, and there was no rationale offered for the contradiction. In 2004, the veteran had surgical repair of the hernia, using mesh. The Board gave fleeting mention of the discrepancies, but didn't address them beyond that, saying that it was well healed back to the initial date of claim, no belt prescribed, and that was that.

The new evidence would be from the surgeon who performed the 2004 surgery, records of which the Board already had, explaining the impact the lack of mesh reinforcement in 1991 had on the hernia he later repaired, that there was early evidence of abdominal wall weakening, and that had mesh been used in the original surgery, it would have more likely than not discouraged the reoccurrence of the hernia and negated the need for the 2004 surgery. If we can't use that, then I guess we'll just call them out on the discrepancies they never addressed. The regs don't say a belt is required for a 20% rating, rather "indicated."

[john999]

I believe that if VA ignores and never lists evidence you submit it is a CUE. It should be probative evidence like an IME they ignore. My CUE is based on this since the VA must consider "all" evidence in the record.

[lotzaspotz]

We would be happy to have a staged rating at 20% to cover the period between his initial claim date in 1993 and the date of his second hernia repair surgery in 2004, at which time it would revert to 0% compensable. I think that would be reasonable.

[john999]

Considering the VA has left this claim pending for 20 years I would hire the lawyer and go to the Court. If you get a remand you may be able to add evidence.