VA avoids reading evidence?

[Buck52]

What is a veteran to do when he sends in credible probative evidence that would help  with his claim for approved decision & its obviously the VA never read any part of it and the vet is denied.

NOD yes, but if he can't use the evidence he already submitted then if he has to go get ''another IMO'' its just not fair, the only good is the vet will get more retro when he does win but what if the vet needs his claim to help feed his family? ASAP

[Chuck75]

I suppose that the wording of the denial might have a real impact for or against the veteran. In any case, the past practice has been to file an NOD, in order to get the denial details. (SOC-SSOC) If they ignored positive evidence (nothing new) and or tried to say no evidence is negative, then there is a possibility of an appeal being successful.

In any event, don't let any of the deadlines slip by.  I've seen denials that were obviously wrong, and clearly not in compliance with the laws and regs.

[broncovet]

Berta has spoke on this topic before, but I was not able to immediately find it.  

Under Bell vs Derwinski, the VA is "presumed" to have certain evidence even tho they may not acutally have it in their hands.  Its called "constructive receipt".   An example is when you go to a VA doc, Va orders your medical records, and the VA ignores said evidence, such as a probative opinion offered by one of your doctors.  

(Constructive receipt mostly applies with VAMC records, which VA is presumed to have, but not necessarily with private medical records, as the VA may or may not have those, even if you signed a release to VA for them.  The Va does not guarantee that Dr. X, in private practice, will send all or even part of your medical records to them.)

The difference here is important in an issue of CUE.  You see, cue is based on the evidence in VA's possesion at the time of decision.  If the VA does not have all the evidence, then it isnt CUE, but you can reopen with new and material evidence in 3.156.  But, under Bell, the VA is presumed to have VAMC evidence, even if they dont actually have it.  This means you can attack this with CUE OR, you may still be able to reopen with N and M evidence under 3.156.  The problem lies is it "new" evidence if VA just plain did not read it.  

The VA is required to consider all evidence.  

[Navy4life]

Buck52;

I truly believe my original evidence submitted for my claims was not properly evaluated.  The DRO review hearing is considered De Novo (latin for starting over) and I plan to ask the DRO review hearing officer if he/she has read certain evidence already submitted.  That is my only time to ask, them if there is anything I should submit to them in order to help them with the decision as  a favorable one.

The NOD, can be a lot faster than the traditional appeals process.  A lot of Veteran's fail to realize that when they file the NOD they should specifically state in the NOD that he/she request a DRO review hearing.  If you DO NOT request the hearing, the NOD can be reviewed without ever allowing the Veteran a chance to respond and defend the denial.

Also if you do not do what I suggested in your NOD, the VA will send you a notice and ask you if you wish to go the traditional appellate review or review by a DRO.  Again, if you do not ask for a DRO review hearing they are not obligated to give you one.  This is where Veteran's make a HUGE mistake!

DROs  review the evidence “de novo” – essentially, with fresh eyes and without deference to the initial Ratings Decision!!!! I can't stress this enough!

So Buck yes you can use prior evidence if you so deem so and you can point the DRO in the right direction to review the already submitted evidence.

As far as the Veteran relying on the claim to bank him/her's family finance, that should not be relevant at all.  I understand there are hardships but it is not a good idea for a Veteran to get their hopes up that a "windfall" will come their way....

[HorizontalMike]

3 hours ago, broncovet said:

Berta has spoke on this topic before, but I was not able to immediately find it.  

Under Bell vs Derwinski, the VA is "presumed" to have certain evidence even tho they may not acutally have it in their hands.  Its called "constructive receipt".   An example is when you go to a VA doc, Va orders your medical records, and the VA ignores said evidence, such as a probative opinion offered by one of your doctors.  

(Constructive receipt mostly applies with VAMC records, which VA is presumed to have, but not necessarily with private medical records, as the VA may or may not have those, even if you signed a release to VA for them.  The Va does not guarantee that Dr. X, in private practice, will send all or even part of your medical records to them.)

The difference here is important in an issue of CUE.  You see, cue is based on the evidence in VA's possesion at the time of decision.  If the VA does not have all the evidence, then it isnt CUE, but you can reopen with new and material evidence in 3.156.  But, under Bell, the VA is presumed to have VAMC evidence, even if they dont actually have it.  This means you can attack this with CUE OR, you may still be able to reopen with N and M evidence under 3.156.  The problem lies is it "new" evidence if VA just plain did not read it.  

The VA is required to consider all evidence.  

DANG!  Broncovet, you nailed it!  This is GOOD!

For others,... PAY ATTENTION!  This is good chips-on-a-shingle advice.

I am starting to believe that  "...§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury..." Amount to the keys to the city!  At least in my case I can think of at least 2-3 additional secondary-service-connected disabilities that are, or will be, appealed... AND WON!  Keep up the fight!...

http://www.ecfr.gov/cgi-bin/retrieveECFR?n=se38.1.3_1310

[Vync]

18 hours ago, broncovet said:

Berta has spoke on this topic before, but I was not able to immediately find it.  

Under Bell vs Derwinski, the VA is "presumed" to have certain evidence even tho they may not acutally have it in their hands.  Its called "constructive receipt".   An example is when you go to a VA doc, Va orders your medical records, and the VA ignores said evidence, such as a probative opinion offered by one of your doctors.  

(Constructive receipt mostly applies with VAMC records, which VA is presumed to have, but not necessarily with private medical records, as the VA may or may not have those, even if you signed a release to VA for them.  The Va does not guarantee that Dr. X, in private practice, will send all or even part of your medical records to them.)

The difference here is important in an issue of CUE.  You see, cue is based on the evidence in VA's possesion at the time of decision.  If the VA does not have all the evidence, then it isnt CUE, but you can reopen with new and material evidence in 3.156.  But, under Bell, the VA is presumed to have VAMC evidence, even if they dont actually have it.  This means you can attack this with CUE OR, you may still be able to reopen with N and M evidence under 3.156.  The problem lies is it "new" evidence if VA just plain did not read it.  

The VA is required to consider all evidence.  

Buck,
I am not sure if your situation involves private medical records. If it does, I recommend submitting copies to the VA -and-  also submit a signed Authorization to Release of Information to the VA at the same time. If you don't, it could get lost in the shuffle. I found that by doing this "one-two" punch, it can save time because you don't have to wait for the VA receive your copies, send you an authorization letter, and wait for it to be received.

I also agree with Broncovet's great advice. Check the SSOC to see if your probative evidence was listed. Sometimes they might be generic and say "reviewed c-file" or "reviewed all evidence of record". Ages ago the VA did a relatively poor job at listing evidence. However, lately they have tried to be better and granularly list specific evidence.

Back to your original question though, it does raise questions if the doctor/examiner actually looked at it.

[Buck52]

Thanks Everyone

This is for a veteran I am helping out

I am reading Ms berta post on CUE's

Thanks again

 

..............Buck