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

[VetlawUS]

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

You said he was RECENTLY given 50%. You have 1 year from the date of Notice of Action Letter to file a Notice of Disagreement (NOD) to appeal that grant of 50% and argue it should have been 70%.

NEVER reopen a claim when you still have time to appeal. Why?

1) If you reopen, 2 things happen. First, the VA gets confused as s**t....you can't reopen something that is still "open" for appeal. So the claim will sit for at least a year until they are sure it is not an appeal. THEN...they will treat it as a Claim to Reopen - which, for a change in rating will be claim for increase....you lose the original effective date if you win. Check this hypothetical timeline out:

6/1/2013: Original Claim

12/1/2014: VA Decision Granting 50%

2/1/2015: "Claim to Reopen" because you think the rating should have been 70%....the EARLIEST effective date you will get, if you win, is 70% back to 2/1/2014 (one year before the claim for increase).....that means you lost about $2,200 in past due (difference between 50 and 70% from 6/1/2013 to 2/1/2014.

If you file the NOD in 2/1/2015, and win the argument that it should have been 70%, you get the 70% all the way back to the original claim date: 6-1-2013.

Here are some Quick Tips on filing the Notice of Disagreement from the Veterans Law Blog....there is a TON more info about the NOD and DRO process on the Veterans Law Blog.

[VetlawUS]

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

Please don't fall for this Reconsideration "advice" - I have seen more Vets lose more money by listening to VSOs give this "advice".

Please read these posts on the Veterans Law Blog that explain why:

There's no such thing as Reconsideration at the VA Regional Office

Following VSO advice on "Reconsideration" is Flushing Money down the toilet.

[kate7772]

You said he was RECENTLY given 50%. You have 1 year from the date of Notice of Action Letter to file a Notice of Disagreement (NOD) to appeal that grant of 50% and argue it should have been 70%.

NEVER reopen a claim when you still have time to appeal. Why?

1) If you reopen, 2 things happen. First, the VA gets confused as s**t....you can't reopen something that is still "open" for appeal. So the claim will sit for at least a year until they are sure it is not an appeal. THEN...they will treat it as a Claim to Reopen - which, for a change in rating will be claim for increase....you lose the original effective date if you win. Check this hypothetical timeline out:

6/1/2013: Original Claim

12/1/2014: VA Decision Granting 50%

2/1/2015: "Claim to Reopen" because you think the rating should have been 70%....the EARLIEST effective date you will get, if you win, is 70% back to 2/1/2014 (one year before the claim for increase).....that means you lost about $2,200 in past due (difference between 50 and 70% from 6/1/2013 to 2/1/2014.

If you file the NOD in 2/1/2015, and win the argument that it should have been 70%, you get the 70% all the way back to the original claim date: 6-1-2013.

Here are some Quick Tips on filing the Notice of Disagreement from the Veterans Law Blog....there is a TON more info about the NOD and DRO process on the Veterans Law Blog.

This claim is no longer listed in historical claims with "appeal possible."

[broncovet]

Thanks, Vetlaw, for your input. Berta, Asknod, myself and you all agree it is not the best to file for n and m evidence within the appeal period.

3.156 is just one of the exceptions to get past the finality of the one year period, when the Veteran fails to appeal in time.

VSO's often do not know of this notable finality exception. They often say something like, "If you dont file a NOD within a year, then the ONLY way to get past finality is with CUE." This common VSO error is repeated over and over, completely ignoring 38CFR 3.156 a, b, and c. There are other exceptions to one year finality, also. Still another notable finality exception are notice violations. The VA has to inform you of your appeal rights, and, if they do not do so, your one year appeal period does not begin until they inform you of your appealate rights.

[broncovet]

Kate

Do not rely upon ebenefits as factual information. It can be incomplete, not up to date, or out and out wrong. This said, it may be advisable to call VA on why this is inaccurate, and inquire as to the status of your claim/appeal.

Its been pointed out this is another "trick" the VA plays just like the "secret lists" which led to Spinseki's resignation. Even tho you have a claim/appeal pending, the VA terminates it, "as if" it were adjuticated (when it isnt) to make their backlog look better. In other words if they can not reduce the backlog, they can reduce the numbers of claims they REPORT as backlog.

Yours is a great example: The VA no longer "reports" your claim as pending, which would/should indicate your claim was adjuticated and disposed of. Nope. Its just more false reporting for the VA to make themselves look good, and so VA execs can collect more bonuses, at Veterans expense.

Remember, the VA wont go to congress and say, "Gee, we need more money to pay VA exec bonuses this year". Congress would laff in their face. So, instead, they tell VA, "Gee, we need more money for Veterans".

Then, they delay and deny Vets, at least until next years budget so, at the end of the physical year they say,

"Ok, we got money left over, so we can pay bonuses..lets decide which VA execs get what."

This is accomplished through delay and deny.

Edited March 2, 2015 by broncovet

[kate7772]

At this point it's been done. Filed the reconsideration on Friday. Will let go a couple months to see if they order a new C&P. If not, then we will file the NOD.

I know most feel reconsiderations don't exist but we did file one back in April 2014 and it was decided in Nov 2014. It did not go in our favor but the reasoning was able to be used and my husband was awarded in Feb. with retro back to 2011. So, in less than a year it was done without waiting for an appeal. That said, I did stay proactive and contacted people when I found things wrong. Didn't just let things happen to us but demanded to know why.

Kate