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

[Oceanbound]

9 hours ago, broncovet said:

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.  

 

THIS statement is so true.

And completely reminds of playing Nintendo's Legend of Zelda as a child when it first came out. Japanese really knew the way of life and exactly how the world actually operates.

First playing the game, you get the sword from the old man, then he vanishes, and he tell's you "take this sword because the VA is dangerous to go at it alone" and then wonder around until you find Death Mountain to conquer the boss Ganon (VA.) You find Level 9 (Death Mountain aka the RO) only to be told that you are DENIED entrance/VA compensation.

For a very good reason--you're not ready, because all you have is a basic sword, boomerang, bombs, and a candle. And you don't know anything about 38 CFR, thinking your congress person would be of help and you cry a river (I avoid dealing them with VA matters) because you don't really understand what their job is, a c-file, disability codes, the levels of the VA (RO>>BVA>>CAVC), Vet  attorneys because you were brought up thinking lawyers are bad (not hire them) and they are not, C & P exams done by incompetents who are paid by Ganon/VA to lie to you, raters at the RO primary job is to deny/delay/until you die, IMOs or IMEs, DBQs, Nexus letters, Veteran Friendly independent doctor experts, the two websites that are on the WWW, VSOs, and every blue moon one veteran gets a pass to completely avoid this "game" to look good for publicity for the public on donating to VSOs

So then you have to play the Game.

Going through all the areas, figuring out things, and beating each mini-boss. Dying countless times as you get to harder and harder enemies and stages of the game. The old man and lady give you very basic things--the sword, a map or letter, and a tip or two.

Maybe you save up and buy ((pay to play better)) a better controller, the strategy guide, and talk your friend/classmates that have the game too. Or ask you parents to have permission to the official 1-900 number for tips to your problems (I never called neither did the people I knew because you're paying for it.) This allows you to get a better picture of how the programmers created this game/adventure.

The old man in the beginning of the game is you decades later. So you went full circle and tell some young vet like yourself at one time "take this..."

[GeekySquid]

On 10/29/2018 at 5:32 AM, Buck52 said:

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? 

@Buck52

This is very close to part of my current situation.

In my initial claim in 2012, there was a claim for bilateral hearing loss, it was denied. The C&P Audiologist stated

1) they fully reviewed my records

2) I only had one enlistment and no change existed between my enlistment physical and discharge physical

3) There was no OSHA event listed in the medical records

4) there is a hearing loss but it is not service connected.

This C&P was done 5 months after my PTSD C&P, which was done by a VA shrink at the VA. The full DBQ and his diagnosis were in my records when the Audiologist was assigned that C&P.

I have multiple enlistments and the physicals for all of them are in my C-File and the PTSD C&P references them. Actually the only hitch in the PTSD C&P is the doc wrote I was in the Air Force but I am Navy, I did not find this out until this year.

I have the OSHA events listed. I have my hearing baseline reset twice according to the files (though I was never given a "quiet time out" and then rechecked.

I had annual hearing tests because of my job and certain events, though the VA does not yet know there are several records missing for these tests.

My final hearing exam for my final discharge had me at a 70 db loss in R and 75db loss in L. the loss progression can be seen in the exams that are in the records that the Audiologist did not look at.

I have filed to reopen that claim. It is tangled up in an SMC-K claim that the VA folded into it along with another claim.

I have had the C&P for ED and the SMC-K should be a no brainer, the doc is clear that my ED is completely related to my PTSD.

These claims were filed Aug 20 2018, last Saturday the claim status went to Pending Decision Approval and today bounced back to Reviewing Evidence.

I will call Peggy tomorrow, but I have never gotten through to her so I won't hold my breath there.

My biggest concern right now is that they will continue to keep these claims all tied up together instead of at least finishing out the SMC-K. They are the ones who combined the claims and I don't find it fair for them to drag their feet on it.

 

[Richard1954]

I had the same thing happen to me last year when I put in a claim for my left knee. I had an IMO and the VA ignored the IMO calling it medical evidence,   I just appealed the claim stating that it was not medical evidence but a medical opinion. In fact this medical opinion was in contrast to the opinion from the C/P examiner... so I should have received the benefit of the doubt, or a reason given why I did not get the benefit. Furthermore, I proved that the examiner has lied about her source of information and had only cited a portion of a line that discredit my claim, but the actual line she cited did not have anything to do with knees,  and everything to do with gaits. Anyway as I said I just appealed the claim citing the IMO again.....I haven't received any answer yet... 

[GeekySquid]

6 minutes ago, Richard1954 said:

I just appealed the claim citing the IMO again.

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.

[Buck52]

GeekySquid &Richard1954

Please read Ms berta post and the above post about ignoring evidence,

38 CFR4.6 And the 38 CFR 3.156 broncovet posted  these are some great Regulations for you guys. this will shed some lite on your claims and in your appeals you need to mention these Regs.

Richard1954  not sure what you mean they mention your IMO WAS NOT EVIDENCE BUT MEDICAL  OPINION? However  Your correct here  when there are two different opinions from medical professionals  your claim in question will go into equipoise that's when they use the Dr opinion that is more qualified and go into more detail about your condition. if they think its the same from both Dr's  the reason of doubt goes to the Veteran.

 G.S., Also on ED...just my opinion but my understanding  of  E.D. it is rating at 0% if its a secondary condition and not a direct service connected, you still get the ED and any possible SMC if the SMC Criteria is met from the SMC Special rating table  and the EED for it ,but as for as them rating it at a % #  it will be rated at 0% but will be paid the 106.** monthly in addition to any of your S.C.Conditions that you already have.

the finding of medical fact as to when your E.D. was diagnosed or when you first filed for it for your EED.

Example  I used the ITF  ok then it took them 5 months for the decision   so my RETRO went back 17 months, I never contested the E.D. As for as when I was diagnose..b/c I was trying things to help with that  unfortunately they all failed  so when I was granted the E.D.and was paid the 17 months   I agree with that.  & they closed my claim out.

This is what they did with my claim  the E.D. is caused/related to medications from PTSD...So I filed E.D. Secondary to PTSD. its service connected but at 0% but they still pay me the 106.** monthly  its added into all my S.C. Disability's

Now just so you know this!!

 I had a private urologist give his IMO/IME that I had done he was a specialist in his field...ok in my E.D. claim they never mention him or his IMO...maybe they did Ignore him  but as it turned out they used the VA Dr opinion for the Grant of E.D...Had I known that I didn't need this private opinion from this specialist I certainly would not have did that  ..but I have it on record just in case.

some times its better to get your decision than going over board with these IMO's/IME's (jmo) we can't always rely on C&P Exams. but if the C&P EXAM is negative  then we can always get a private exam to rebut this negative C&P. This is why  its better to wait for a decision. or when filing just make sure you have all your ducks in a row .

 G.S., As for as rolling all the claims into one  they don't necessary do that  they take one claim at a time and work it , Now  usually they wait until they can decide on all the Veteran claims  but the ones they make a decision on is what you can agree to or disagree to  the thing is you have to wait for a decision before you can appeal it.(which I am sure you guys know this)

Again, use these C.F.R. Regs to your Advantage.

Edited October 31, 2018 by Buck52

[Buck52]

I want to clear the air ..on secondary claims   for E.D. Claims Only that are not direct service connected but is service connected due to a existing disability as secondary to another s.c. condition ...THIS IS WHY IT IS NOT GIVING A PERCENTAGE BUT PAID AT A CERTAIN COMP LEVEL.

E.D. Claims are the only claims that I know of that has this type rating service connected @ 0% but paid out a certain monthly compensation to the veteran in addition to his other S.C. Disability's

They don't make it all that clear as to why they assign a service connected rating at 0% but still pay out the 106.** monthly in addition to the veteran other s.c. rated disability's  I can't find the REGULATIONS ON THIS.

Unless its up to the rater to use the Regs allen aggravation of secondary claims.?

Normally

§3.310   Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

 

Edited October 31, 2018 by Buck52