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

[SgtStelmo]

This is an old thread but I am enjoying this opportunity and would like to comment on a few previous statements with my two cents.  As you can see not worth much, but it might help someone.

Now Broncovet seems to think that the file is sealed after a BVA decision and I am not sure that is correct.  I think that any Veteran can get a copy of this evidence by filing a request with the FOIA/Privacy Officer at the BVA.  Her name is Margaret Peak and her fax number is (202) 343-1422.  I would sure like a citation for any rule, regulation and/or law that would prevent the Veteran from obtaining evidence in their case.  Let me also give her direct number (and I can attest that if she is in she will answer the phone) which is (202) 632-5435.

Next it was discussed about things dying a slow death at the VA for inaction.  Sadly this happens far too often, but there is a remedy from the All Writs Act.  A veteran would need to file a Petition for a Writ of Mandamus with the CAVC.  Using google and/or another search engine will produce many outlines for this petition.

The key to remember with any writ is they are considered as 'original jurisdiction'.  As such you must provide the evidence to the court to support your demand.  Now it is highly doubtful the court will issue the writ, but that should get you an applicable court order to revive the proceeding.

One can also search CAVC cases at their website.  You would be able to read writs that prevailed.  Those would give you a good idea on how to proceed.  Keep in mind, the VA plays the numbers game, at each roadblock a certain percentage gives up the fight.  That is their goal but you have the power to prevent this.  

 

[broncovet]

On 10/30/2018 at 11:03 PM, GeekySquid said:

do you mind telling us how long ago you appealed? I am trying to wrap my head around some of these time frames.

They make no sense.

As I understand things, the VA is not supposed to hold up paying one claim just because all parts are not completed. I was also just bumped to 100% P&T for PTSD and all the ED evidence is in my med records at the VA and my STR's.

I am considering trying for an EDD on the ED as the VA knew it existed when the PTSD claim was first rated, and the C&P examiner mentioned in their write up. Nothing in the Award letter and I did not know then, that anything about SMC's or that ED was a ratable condition secondary to PTSD.

heck I did not know that any secondary events were even possible, and my first VSO was good, but the man was dealing with pancreatic cancer when my award came through. I never saw him again and no one from American Legion contacted me or took over active control of my claims.

I might be able to cobble together a successful argument for the EDD as an inferred condition, who knows but it is worth the try if they ever get the current stuff resolved.

Sgt:

After a BVA decision, the Veteran or his representative, has 60 days to appeal to the CAVC.  At that point, the CAVC decides the merits of the claim on the "evidence of record" and no new evidence can be submitted, that is, the file is sealed and the CAVC will decide on the same evidence which the Board decided, the "Evidence of Record", aka the "Record Before Agency".  

Source:  3 trips to the cavc with 3 different attorneys

Now, if the CAVC remands the claim, the veteran can submit new evidence.  

Edited November 4, 2018 by broncovet

[Berta]

Broncovet-I am glad you are back and hope you are doing well, after the surgery!

I agree with what you stated above.

Most of my CUEs under 38 CFR 4.6 were due to the VA completely ignoring probative evidence.....

'probative -meaning evidence that has enough value to fully support the claim'.

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6
 

Oddly enough-the VA did list my sole piece of probative evidence for  a  2015 decision,I got , but they got a 'medical examiner 'to write a ridiculous statement, which denied the claim ( but it was awarded when I filed CUE immediately on it.)

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.

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.

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.The only recourse is filing a civil malpractice suit. I found a link to all VA contrators, that is updated regularly (they come and go)in mere seconds

and ,if you have read the Tally case, it took VA 8 mnths to determine the doctor who harmed him was an independent contrator, therefore no  FTCA settlement although Mr Tally was definitely harmed by the 'doctor's care,per VA, but his Statute of Limits for Civil action had run out in those 8 months.I told his lawyer the VA BSed him-the lawyer cannot find any record of this doctor working for VA at all.......so far....

I digress- They awarded my above claim right away under CUE, but that is not the problem-many widows and widows do not have the knowledge to know that denials like mine ( I have gotten plenty) can be overcome many ways-

and in this case some 'examiner' did not even read the evidence I sent-or if they did, they sure had no expertise at all and  opined negatively.My evidence came from the VA's top cardio doctor in VACO. a medical review the VA did for my FTCA issue in 1997.

I do not believe anyone with medical knowledge even did this posthumous "C & P" review.

I combatted every statement they made, filed CUE unde 38 CFR 4.6, and referred to the evidence they had but chose to ignore.(( and enclosed it again)

Widows and widowers have lost the best witness they have to many post -death types of VA claims.

VA knows that and takes complete advantage of that fact.

 

 

Broncovet is right,in that they make general statements regarding medical records. But when we file our claims, we have every chance to make sure the VA notices specific entries and records in SMRs or in the VA medical record. If we dont know what the SMRs and/or the VA medical record contains, they can and will walk all over us.