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

[broncovet]

You have been given good advice. File a NOd, and file for TDIU.

[Fat]

^{"NEVER GIVE UP"}

[kate7772]

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

We met face to face. Several VSOs weighed in on it. They said to do this and use the IU as a backup. The good thing is it will not need to go back to the original rater in Louisville but will stay in our local VA office. We originally had to go through Louisville because my husband was involved in a Camp Lejeune water claim but now that is complete so can be decided here. I will start the IU as suggested.

It surprised me how fast it appeared on Ebenefits. Without hope we have nothing. But, I will temper that with the wisdom I've gained here.

The original claim is no longer listed in historical. This new claim says status has changed along with under review.

Kate

Edited February 28, 2015 by kate7772

[Gastone]

Kate: Did I miss something, the "new claim status has changed along with under review," what new claim and when was it filed. I thought you just got an Award Decision, did you have another claim submitted that was not combined with the claim that just got awarded?

I don't recall you mentioning getting a copy of your C-File. You can file an FOIA request in the near future, took me about 15 mos to get mine. With that said, it seems to me you rely heavily on your VSO-Rep when it comes to filing claims and follow up. You just might want to request copies of all claims and correspondence originating from or received by your VSO-rep dealing with the VA as your Claims POA. I 1st used a VRO-Rep for my intial filing in 07/08. To this day, I have never had contact with him again. No return of Phone, mail or Emails, guy was a real Douch Bag. Started using a Different VSO that always had a rep in the office, just for follow up and to bounce claims ideas off. I did use the VSO DRO Hearing Specialist as backup at my DRO Hearing.

Semper Fi

Gastone

[broncovet]

I have done considerable reasearch on "earlier effective dates", and perhaps I can explain it this way.

If you receive an unfavorable Regional Office Decision you have one year to appeal. If you do appeal, and the BVA, DRO, or CAVC rule in your favor, the you should get the effective date as the later of 1. The date you origingally filed or 2. The "facts found" which is the date the Doctor says you became disabled. If, however, you fail to appeal the decision in 12 months, then the decision is "final" and can not be appealed with a few exceptions.

One notable exception is 38 CFR 3.156."new and material evidence". 3.156 is divided into 3 sections which are treated somewhat differently: 3.156 a) N and M evidence b) pending claim and c) new and material "service records (See 38 CFR 3.156 for details).

An example may explain 3.156: The Veteran applies for benefits, and the VA denies, possibly because the VA says the Veterans service records are negative for any treatment of the applicable condition. Lets say 3 years later, someone discovers the Veterans service records, and those records, which were lost, but turned up somewhere and they corroborate the Veterans evidence. This would mean the Veteran, if service connection is eventually awarded will get an effective date when he first applied, as it is unlikely the Veterans fault the VA or NPRC lost his records.

38 CFR 3.156, however, is NOT the only exception to the effective date rules I gave above.

Here are the rest of the exceptions to the effective date rules. This is the best information available on winning an earlier effective date:

http://www.purplehea...ate ErrorsL.pdf

The NVLSP explains 3.156 a, b, and c, in some detail.

Edited February 28, 2015 by broncovet

[kate7772]

Kate: Did I miss something, the "new claim status has changed along with under review," what new claim and when was it filed. I thought you just got an Award Decision, did you have another claim submitted that was not combined with the claim that just got awarded?

I don't recall you mentioning getting a copy of your C-File. You can file an FOIA request in the near future, took me about 15 mos to get mine. With that said, it seems to me you rely heavily on your VSO-Rep when it comes to filing claims and follow up. You just might want to request copies of all claims and correspondence originating from or received by your VSO-rep dealing with the VA as your Claims POA. I 1st used a VRO-Rep for my intial filing in 07/08. To this day, I have never had contact with him again. No return of Phone, mail or Emails, guy was a real Douch Bag. Started using a Different VSO that always had a rep in the office, just for follow up and to bounce claims ideas off. I did use the VSO DRO Hearing Specialist as backup at my DRO Hearing.

Semper Fi

Gaston

We had no open claims. What showed up yesterday under open claims was what the VSO filed yesterday.

I do most of the work on the claims myself using info received here. Sometimes we will call DAV for advice. And, we usually take it to them to have it filed. Although, for things that are time of the essence, we hand deliver to VA or send with return receipt.

I do have to say that the DAV VSOs have been very helpful. Wish I could say the same for the county one who originally filed the claim and caused a mess.