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

[georgiapapa]

Kate,

PTSD has to be diagnosed by a VA psychiatrist or VA psycholigist (GS-13 PhD level). All other mental health conditions can be diagnosed by a VA or private psychiatrist or psychologist. All mental health conditions, including PTSD, can be treated by VA or private psychologists or psychiatrists. If I am wrong on this, I am sure others will correct me.

GP

[kate7772]

Talked with DAV today about coming in the file for TDIU and a NOD for percentage on mental health claim.

They said there is a thirty day thing where we can request a conference with the rater and explain why we think the rating is wrong. DAV said they would be there also. Just needs to be done within thirty days of award.

Anyone ever done this?

Thanks

Kate

[georgiapapa]

Sounds like a DRO where you can go before the Decision Review Officer and you can provide medical evidence, give testimony and argue why a decision should be changed.

This would be an opportunity for you or your rep to point out the medical records showing your husband had most of the symptoms required for the MH 70% rating and also argue for the TDIU rating citing evidence showing your husband's service connected conditions prevent him from seeking or maintaining substantially gainful employment. If possible, you should try to get letters or DBQs from his doctors stating his conditions prevent him from seeking or maintaining substantially gainful employment. If a condition is unlikely to improve, the doctor should state this fact. JMO

[Gastone]

Kate: the "30 day thing" sounds like the old "Request for Reconsideration." Even though there is no official VA "RFR" at the VARO level, it would make since that if your VSO-Rep is on the stick, he would trot across or down the hall to discuss the decision with the Rater that made it. This is definately not the same thing as a DRO reviewing your Denial. Just don't get lulled into thinking the Rater is going to change the SC%. Might happen but I doubt it. Never read any "RFR success stories."

Taking into consideration that each VARO Rating Dept is made up of ?? number of Claims Raters + ?? number of Senior Raters + last but not least ?? number of actual DROs that can pass judgment on your Award/Denial, you have to ask yourself, do you feel lucky, well do you? Now Berta or NOD might be able to help here but I think it only makes since that our initial award/denial decisions by Reg claims raters are overseen by the Senior Raters. That being said, what are the chances that based on the evidence of record, a SC% error was made? I know, everyone talks about the VA Low Balling the ratings and it probably does happen. I choose, lacking solid stats, that the low balling is the exception rather than the rule.

Semper Fi

Gastone

[kate7772]

Talked with our VSO today and they did a reconsideration of the mental health claim stating an inadequate C&P. The VSO said that there are two main components of the C&P that are used when rating and the C&P examiner only completed one of them. VSO walked it to the VA regional office and it is already showing up in eBenefits as under review. VSO mentioned something about SEP. Anyone know what that term is?

Hopefully they will agree to a new C&P. VSO said it is difficult to get a new C&P but due to the incompleteness of this one they think it will be granted.

Kate

[Gastone]

Kate: I see that "HOPE" thing in there but no mention of your VSO filing your IU Claim. Are You doing face to face with VSO or telephone only? Do yourself a favor, at least establish a IU filing date by starting a claim on your E-Ben site's on-line VONAP. You have 1 yr from the Start date to actually hit the "FILE" button but at least your IU Retro Date would be locked in. Or then again there is "DOOR 2," await the potential positive outcome of your VSO's "Request For Reconsideration."

Spend some time reading Berta's and asknod's posts and opinions regarding "RfR" at the VARO level.

E Ben Note: I was awarded IU 6/2014 and my account is just now showing my claims as closed since early 01/15. No SC % or IU awards listed. The VA has never been accused of speed or thoroughness when it comes to supplying Vets with Real-time Claims info. Maybe your VSO has some Magic Dust or the "Under Review" is the pre-decision status from a few months ago. Did it list your original claim as Appeal Available?

Semper Fi

Gastone