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Amend old medical records and reopen claim via New and Material Evidence?


This is related my CUE topic, below. To briefly recap it, the VA had to perform a second C&P exam because the first one was misplaced. Years later, I found the initial exam in my c-file and, if it had been used, I would have been given a higher rating.


What are the odds of being successful if I:
1. Request to amend medical records to replace the second C&P exam with the initial, more favorable, C&P exam
2. Reopen the claim via New and Material Evidence requesting the reevaluate the initial rating based on the amended exam?



The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his electronic VA files.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).



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The short answer is we dont know what the "VA will do".  I say, "go for it".  This may set a precedent, when records are inaccurate or incomplete.  You may wind up hiring an attorney to do this.  

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