Further evidence for being declined by VA

[MCCFR97]

I'm putting together further evidence to show service connection for disability for multiple myeloma based on contact with TCE's and Benzene on the flight line 91-97. 

Min addition to photos, lay witness statements and a nexus letter from my oncologist, can I also submit a previous des soon by a VA judge advocate dated 2012? In that decsision the judge found in favor of a Marine who worked on the flight line in 91-92 at El Toro. He was in NBC and had contact with benzene also and had multiple myeloma. This is basically the same as my claim only a different MOS.

thanks.

[broncovet]

38 CFR 3.156 has 2 parts:  New and material Evidence, and new and material SERVICE Records, with the later being more liberal on your effective date.  

Of course, you want to first have a copy of your cfile, and your decision.  Does it say this evidence was considered in the "evidence" section? Did you appeal the denial within a year?  

[MCCFR97]

I'm still within the first 60 Days of denial. My understanding is I need to get that evidence in to have a speedier process. I was told if I wait outside the sixty days I fall into the 1 year appeal process which can take years. I will have this packet ready for submission this week, I'm about 30 days ahead of schedule, as a matter of fact I think today is the first 30 days gone.

whats my cfile?

[broncovet]

Welcome to hadit.  YOu came to the right place.  It sounds like you have gotten some misinformation.  

If this was a Regional Office decision, then you have a year to appeal.   You can elect a DRO review or go straight to the Board of Veterans appeals.   Nether are gonna to be fast, but the DRO may be faster, if they award at that level.  There is nothing special about 60 days, if this is a RO decision.  

You need to request a copy of your records..your c file.  Appeals take a long time.  Sorry.  

[armyrob]

It's also worth mentioning - submitting 'evidence' from previous BVA decisions has no bearing whatsoever. The BVA decisions are not precedents, and what one VLJ decided on a claim has no bearing on the next. The only decisions that establish a precedent are CAVC and higher. Concentrate your efforts on your claim, and if possible get an IMO that it is as likely as not. An IMO with such a statement will carry weight.

[armyrob]

IMO = independent medical opinion (in other words a private doctor). I was basically stating not to cite BVA decisions to establish precedent, as stated earlier, they hold no weight. HOWEVER, the BVA decisions regarding benzene (i.e. jet fuel), and the reasons, basis and facts behind certain decisions is what you are looking for here.. Look at cases the BVA has cited within their decision -- this is how you establish precedent. (For example, wording in a BVA decision that includes language from a higher court such as "Combee v. Brown, 34 F.3d 1039", as these are precedents that are being cited as a basis to their decision).

Also, on the BVA decisions that were remanded for further action, look carefully at the items the BVA is requesting and the plain language of what they are asking for. By building this information now you can at least reduce the chance of a remand from the BVA. Many of the remands for cases regarding benzene have very specific actions they want a doctor to determine, and then return the information to the BVA to make a decision. If you can get this information now from an IMO you will be in good shape.

For instance, this case: http://www.va.gov/vetapp15/Files5/1545793.txt

Read the bottom under the title "REMAND" -- and what the BVA is requesting from the doctor. If you can build this information prior to going to the BVA, it would be very proactive in your claim. I would not expect this to be settled at the RO level, or for that matter a DRO level. It's a complex claim and will most assuredly have to be decided at a BVA+ level (I genuinely hope that it could be solved lower, but I wouldn't count on that). So with that in mind, just prepare all the facts as if it is going to the BVA or CAVC level. If you can win it at a lower level, great! But prepare for it to go up.

I wish you the best of luck. In the end you will prevail - just stay positive and stay on top of it. 

Edited January 16, 2016 by armyrob

[GuaymasJim]

armyrob,  you did a fantastic job of explaining the use of prior decisions, precedents, and making use of them in VA claims.  I don't believe I have seen these topics summarized so well before your post!  There are many here on hadit and elsewhere who should read your post.  Many of us old farts learned these things through trial and error over many years, but you summed up the whole can of worms in three paragraphs!  Spending a few hours or even days reviewing claims that have succeeded, or failed for that matter, while preparing your own claim or appeal BEFORE submitting it can, and most likely will, save years of appeals and remands, etc. You are carrying on a long standing hadit tradition--dispelling myths, reducing the BS, and simplifying an arcane system run by a completely dysfunctional agency.

Far too often vets, including me, try to reinvent the wheel AFTER it has already rolled down the hill. It is a lot more difficult to  roll that wheel back up the hill!

Thanks for your post!