Will VA Consider Evidence if?

[Buck52]

If a Veteran has sent in evidence for his claim..and VA Ignores this evidence and is not considered and his claim is denied..veteran does not appeal  waits 7/8 years and request his C-FILE and reads his case that they denied and they never considered his evidence he had sent in on his original claim

is this CUE or would be grounds for him to reopen his claim to be fairly adjudicated back to his original claim date if this evidence was looked at? 

 he keeps thinking the VA denied his claim because they said no evidence was there to prove his claim...but it was and they over looked it.

my question can he resubmit this evidence again that's already in his C-FILE to reopen his claim?

I told him I was not sure ? but give me a few days and I will get back to him.

What I am not sure about is rather or not his evidence will change the outcome of his original claim?

this would not be considered new & material evidence if it was already presented in his original claim.

Thanks in Advance

[broncovet]

Excellent question, and it happens all the time.  Perhaps Berta will chime in, too.  

We need a "little more information" to give an answer:

1.  Was THIS evidence shown in the "evidence" section of the decision?  

2.  Was this evidence NEW SERVICE records, or just new evidence?  (38 CFR 3.156 C or 3.156 b)  

My OPINION is that, if this  exam was listed "as evidence", and this exam demonstrated the nexus or other Caluza elements, then it should be CUE, because 38 CFR 3.156 B "pending claim" would not apply, as the claim would no longer be pending.  

YOu could easily get into "grey area" here, tho.  Va often lists "general evidence" but not specific exams.  For example, they may say as evidence, "The VEterans medical records from 11-2-84 to present".   This would not guarantee that an exam on 12 1 1996 would be present, but it could have been present as evidence.  

Hopefully Berta will chime in here.  As Berta often says, 38 CFR 4.6 says they have to consider ALL the evidence, so failure to apply 4.6 and consider this (missing evidence) would be a violation of 4.6

 

[broncovet]

Vets who dont know what evidence the VA has is at a specific disadvantage.  It would be like you going on trial, and not even know what the charges are.  In "real" law, there is a discovery period, where both sides are required to inform the other of applicable evidence.  Neither side can legally "withold" evidence, both sides get to see what evidence is for/against the accused.  

If a "new witness" emerges after discovery, the judge makes a determination as to whether or not this new evidence is admissable.  If an accused made a stament prior to being read his Miranda rights, that statement may not be admissable as evidence.  Very often, an accused prior records can not be used against him.  You could see that if he was guilty of a crime in the past, the jury could easily conclude he is guilty this time also.  However, the judge may rule that a prior conviction is not admissable.  This can create a real problem.   

In VA law, the file is "sealed" after a bva decision, so often a claimant does not know what evidence the VA has.  Its like flying blind, you dont know where the evidence is leading, because you dont know what evidence the VA has.  Often the Vet assumes that VA has evidence in their possession, but often said evidence is not in VA's possession.  This is why virtually 100 percent of attorneys want to see the Cfile (or electronically, VBMS) before they can proceed.  Without the applicable records, it would turn into a mud wrestling match.  

Evidence wins claims, but VA has a nasty habit of losing our key evidence..as they did with me.  l

IMHO, its a violation of 38 cfr 3.103 and 4.6, when the Veteran's claim is decided and the appeal period passes without the VA providing a complete records.  Its not even close to a fair fight when VA's own lawyers have a copy of the record, but the Veteran does not.  

This is why its to VA's advantage to making the VEt wait for months or even years to provide the records.  THe appeal period comes and goes far to often before the Veteran gets a copy of his records..this is a violation of due process, akin to being held in jail not knowing why you are under arrest.  

 

 

[FormerMember]

The short answer--

In a situation like this, when you do the reopen 7-8 years later and win, you then introduce the earlier effective date as a NOD. I've had to do this several times but the win on the reopened claim(s) is the ticket to getting your shoe in the door and it doesn't require doing it under §3.105. It's a viable pathway to the EED because it is inextricably intertwined with the reopened claim. This falls under the Standard Operating Procedures outlined in the Segmented Lanes  model of adjudicating claims. 

An Appeals coach is permitted to adjudicate inextricably intertwined claims in the first instance during an appeal in spite of their not being developed to their optimum and properly appealed. Please refer to the M21-1 Manual III. i. 1.3a for guidance. See also Harris v. Derwinski, 1 Vet.App. 180 (1991). This provision comprehends conserving scarce judicial resources so as to better allocate resources to other deserving Veterans.

P.S. Look at Fenderson v West and "staged ratings". This is the only time you can contest an earlier effective date. If you filed 7-8 years ago and won the claim but did not contest the earlier effective date within the golden year to file the NOD, you screwed up. VA will say you had ample time to protest... but you didn't. VA contends that means you agreed with their findings of fact. 

Edited October 30, 2018 by asknod

[broncovet]

Alex, many times the VA simply fails to reopen..even when the Veteran initiated a claim reopening.  It simply "dies" a quiet death, with zero action on VA's part.  

The Veteran, or his representative is then in a precarious position...trying to "pry open" a reopened claim. You see, the VA can simply delay it forever.  "Gee, sorry.  Whew.  Look at that backlog.  Yea, I know 20 years seems like a long time, but others have gone still longer...we (VA) is working on your claim and we will get a round tuit probably by year 2024, provided that congress does not cut funding by then."   

As far as I know, the Veteran need not send a letter stating, "Im reopening my claim under 38 cfr 3.156".   Instead, he need ONLY provide new evidence within the appeal period.  The threshold to reopen is "low".  The Veteran is entitled to, but often does not get, a deciion on whether or not there was sufficient evidence submittted to reopen the claim.  

The VA does not need to decide the claim, they just need to decide if there is new evidence sufficient to reopen.  They can send a denial letter, and sometimes do, that you have submitted new evidence, but that evidence was insufficient to reopen the claim on its merits.  They can simply decide there is insufficient evidece to reopen.  

If the Veteran DID get a letter from VA where they acknowledged reopeing the claim, then that claim remains pending until the Veteran gets an applicable decision.  

If the claim is pending, then the Veteran may submit still new (er) evidence, such as a new IMO/IME and the effecitve date should go back to the beginnning of the appeal period, under 3.156 b.  

The Veteran should check all correspondce to see if this claim is pending...this is huge, and it would not be the first time a Vets claim slips through the cracks and never gets adjuticated.  

[Buck52]

Roger all this Guys

Working with him at present.

Thanks for all this Information broncovet ,Alex and Ms Berta.

[Oceanbound]

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I requested a copy of the actual examiner's report, and their name and credentials.800# said they would respond by OCt 4,2018 but I am still waiting.

How do I do that? Call the RO, the 1800# or the Blue button?

 

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I want to send the actual exam to the Accountability office- which is looking into a different matter- based on some evidence I sent to them- but this proves how reckless these C & P examiners are- even when they have the evidence, and it is listed in the decision.

I'm going to do that with my current claim. For the fact that I had a IMO by Dr. Anaise who is a expert-surgeon (like Dr. Bash, where the VA knows these few Wonderful Private Experts, Anaise also lives in my state--which is why I went with him) compared to the bottom of the medical school barrel hack that did my C&P exam, read the IMO, and wrote a bunch of dates saying your blood work was normal and according to the ER physician assistant that never even knew I was military said my secondary injury (current claim) to my spine SC was congenital.  

So now I'm going to the BVA with attorney because I lawyer-ed up and "had it" and don't want to continue to be "the guy" in the song of Born in the USA by Bruce Springsteen.

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Part of my OAWB issue involves the fact that not ony are C & P exams done by contracting doctors ,but also much medical care at VAMCs these days is done by contracting doctors- this diminishes the entire Section 1151 regulations, as well as any potential FTCA case, if they harm or kill a veteran.

Well this is a double edge sword. Many want to have half the VA fired for gross negligence/incompetence. And Trump is cleaning house--which means more privatization. 

That is why I am trying to do as many C&P exams by private medical experts to avoid this VA Game of Deny, Delay, and Die already veteran; before we dispense compensation for your military injuries.