Would This Be New And Material Evidence?

[kate7772]

Husband was recently awarded 50% mental health. We feel it should have been 70% and would like to reopen/reconsider. I know we need new and material evidence to do so. There are many symptoms in my husband's VA treatment notes that are in the 70% range but were never included in his very incomplete C&P exam. When asked. rater said they did consider the treatment notes but if so they sure missed a ton of references to all these symptoms. One of the symptoms is suicidal ideation. This is and continues to be an ongoing problem. But, since they said they considered the records, we likely cannot try to reopen with this. However, recently my husband's mental health nurse practitioner referred him to a suicide prevention therapist due to the fact that much of the treatment so far has been borderline helpful at most. He does not have an active plan but the thought is always there. So, would this referral be considered new and material evidence to reopen the claim and at that time we can refer to all the other overlooked symptoms also?

Thanks

Kate

[FormerMember]

New and Material evidence, in the eyes of the VA, the BVA and the CAVC consists of evidence (new) that has never seen the light of day. Material evidence can consist of evidence submitted earlier that is probative of the new evidence submitted. The metric is simple. It has to be new but can be submitted in conjunction with older evidence that would help to explain the probity of the new evidence. Material in a legal sense means it’s related to the subject (claim) you are filing.

With that said, NM&E can be a new IMO/IME that you have obtained that shows the correlation between your present condition and relates to service connection. It cannot be an update that describes the current progress of your disease/injury. The NM&E must specifically help tie the current disease/injury to the event in service which you claim was the cause.

Many of you will file what you believe is NM&E that isn't material and VA will reject it as redundant or simply immaterial. VA will make a determination on the NM&E aspect first and then determine the credibility of it afterwards.

Edited February 25, 2015 by asknod

[Berta]

This MH decision is recent so you are still within the appeal period Kate.

This is not a re open situation at all, as I understand it.

I think I suggested somewhere here that since your husband won his Bad Water USMC claim ,that ratin might garner him TDIU if and when he can no longer work.

I know you dont want to get another costly IMO but because the MH issue is NOT PTSD, an IMO could be used to try to obtain a higher MH rating.

Alex is always right on the mark.

Re opens can also be sending them something that corroborates something they rejected .

This is important for anyone here who intends to re -open a claim denied in the past.

For example, say VA rejects a Buddy statement (which might not have been properly prepared)

An additional buddy statement from someone else, properly prepared with contact info and details etc etc etc, same unit, same time and place, would give credence to the original statement that they may or may not revisit.

A widows claim I posted here a few years ago was a re=open of her DIC denial.

She sent the VA one single piece of evidence. It was an article about an unusual form of cancer centered within a small population of people in a small Korean village.

This rare cancer had caused an exorbitantly large amount of cancer diagnoses in the village, the same type of cancer her husband died from.

She had also proved via his 201 personnel file that he had served in very close proximity to this village.

His whereabouts of his service was documented and established in his 201 file.

The article was new and material evidence, BVA ordered a posthumous C & P exam or VACO opinion, I forget which, and the claim was awarded.

To get back to Kate

I feel you should await the rating for the Camp Lejuene claim and see how VA totally up the 2 separate ratings.

Edited February 25, 2015 by Berta

[kate7772]

This MH decision is recent so you are still within the appeal period Kate.

This is not a re open situation at all, as I understand it.

I think I suggested somewhere here that since your husband won his Bad Water USMC claim ,that ratin might garner him TDIU if and when he can no longer work.

I know you dont want to get another costly IMO but because the MH issue is NOT PTSD, an IMO could be used to try to obtain a higher MH rating.

Alex is always right on the mark.

Re opens can also be sending them something that corroborates something they rejected .

This is important for anyone here who intends to re -open a claim denied in the past.

For example, say VA rejects a Buddy statement (which might not have been properly prepared)

An additional buddy statement from someone else, properly prepared with contact info and details etc etc etc, same unit, same time and place, would give credence to the original statement that they may or may not revisit.

A widows claim I posted here a few years ago was a re=open of her DIC denial.

She sent the VA one single piece of evidence. It was an article about an unusual form of cancer centered within a small population of people in a small Korean village.

This rare cancer had caused an exorbitantly large amount of cancer diagnoses in the village, the same type of cancer her husband died from.

She had also proved via his 201 personnel file that he had served in very close proximity to this village.

His whereabouts of his service was documented and established in his 201 file.

The article was new and material evidence, BVA ordered a posthumous C & P exam or VACO opinion, I forget which, and the claim was awarded.

To get back to Kate

I feel you should await the rating for the Camp Lejuene claim and see how VA totally up the 2 separate ratings.

We already have the rating for the Lejeune claim. 80% for kidney, 50% for adjustment disorder and 10 for tinnitus.

So the referral for suicide prevention is not new and material in relation to why it should have been a higher rating? The fact that they did not include it or other symptoms in the C&P?

It says in the award letter that a higher rating is not warranted unless the evidence shows.......and then goes on to list the symptoms and problems it must show. The medical treatment shows most of what they mention but they were never addressed I think largely due to the crappy C&P.

My thinking was new on the recent referral to suicide prevention counseling which points to the fact that he has symptoms that they list as necessary for next higher rating. And of course material since it is their statement that it is an important symptom to have been rated higher.

Edited February 25, 2015 by kate7772

[georgiapapa]

Kate,

I agree with Berta. Since you are still within the one year appeal period, the MH claim is not a reopen issue at this time. You stated the award letter stated "a higher rating is not warranted unless the evidence shows........and then goes on to list the symptoms and problems it must show." However, the C & P failed to include the suicidal ideation or address all of his MH symptoms which would have been necessary for the higher rating.

Does your husband's MH records, especially a DBQ, that were provided to the RO for his MH claim show he had the required symptoms for the higher rating? If your answer is yes and there is no doubt the records show he meets the requirements for the higher rating, file a NOD based on his MH doctor's records. If the answer is no, I believe you will need a DBQ (showing the required symptoms for the higher rating) from your husband's VA MH doctor or an IMO from a private MH doctor to overcome the bad C & P. JMO

Georgiapapa.

[Gastone]

Kate: What NOD & Berta said. If memory serves, N & M Evidence is only addressed as an appeal "REQUIREMENT" if you choose the VARO DRO Review or Hearing option. Any time after your decision and during your appellant period up to and including being transfered to the BVA, any receipt of N & M Evidence by your VARO is covered by VA regulation in regards to an Automatic VARO Review of your claim by a Senior Rater or actual DRO but giving "Deference" to the original rater's decision.

If you don't agree with rating decision and have N & M Evidence, file your NOD and send in the evidence. You might luck out and get a VARO Auto Review awarded well before a DRO Hearing is on deck (2-4yrs) let alone a BVA Hearing (5= yrs).

Meanwhile back at the ranch, get hot on the IU Claim. At 50% your not eligible for a scheduler filing but it's time to get your ducks in a row. File for VA Vocational Rehab and get a VA Vocational Councilor's expert opinion as to your husband's SC Conditions precluding him from successfully completing a Voc Rehab Program. You may end up getting the 70 down the road but you might qualify for the Extra-Scheduler rating much sooner.

Semper Fi

Gastone

[kate7772]

Kate: What NOD & Berta said. If memory serves, N & M Evidence is only addressed as an appeal "REQUIREMENT" if you choose the VARO DRO Review or Hearing option. Any time after your decision and during your appellant period up to and including being transfered to the BVA, any receipt of N & M Evidence by your VARO is covered by VA regulation in regards to an Automatic VARO Review of your claim by a Senior Rater or actual DRO but giving "Deference" to the original rater's decision.

If you don't agree with rating decision and have N & M Evidence, file your NOD and send in the evidence. You might luck out and get a VARO Auto Review awarded well before a DRO Hearing is on deck (2-4yrs) let alone a BVA Hearing (5= yrs).

Meanwhile back at the ranch, get hot on the IU Claim. At 50% your not eligible for a scheduler filing but it's time to get your ducks in a row. File for VA Vocational Rehab and get a VA Vocational Councilor's expert opinion as to your husband's SC Conditions precluding him from successfully completing a Voc Rehab Program. You may end up getting the 70 down the road but you might qualify for the Extra-Scheduler rating much sooner.

Semper Fi

Gastone

His total rating is 90%. He would likely file for the TDIU on his kidney disease which is 80% and the reason he is unable to continue working. We were just hoping for the 70% for the adjustment disorder to bring it to scheduler.