Decision letter evidence summary/evidence not considered

[DSIG]

The following evidence was listed in my decision letter:

-VAForm21-526EZVeteran'sFullyDevelopedClaim,received January8,2021
-ReviewPostTraumaticStressDisorderDisabilityBenefitsQuestionnaire,received February 16,2021
-Section(§)5103NoticeResponse,received January25,2021

I can't tell if my private doctor's report and DBQ were considered as evidence.  I submitted the report/DBQ as part of the Fully Developed Claim, uploaded it in as evidence and it shows as evidence online.  Was it not considered because it's not listed?  OR was it considered and is actually part of the "VAForm21-526EZVeteran'sFullyDevelopedClaim,received January8,2021"?

Edited February 26, 2021 by DSIG

[ShrekTheTank]

The VA will accept whatever is sent to them, but if they look at it and it changes their opinion is something totally different.  

The VA gets caught up here when you appeal up as they will start to look at all the evidence and not just a few things they think are relevant.  I have seen where one opinion will out do 2-3 others as it was what it was originally based upon.  

Keep appealing and keep fighting.   If it does not show it here then it probably did not get used to make the decision.  

[Berta]

If the VA ignores probative evidence, and does not list it as Evidence, they have committd a CUE.

Even if the VA does list it but never refers to it at all, that too is a basis for a CUE.

They have violated 38 CFR.4.6, which is basic VA case law:

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. 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.

https://www.law.cornell.edu/cfr/text/38/4.6

Probative evidence :

"Probative facts establish the existence of other facts. They are matters of evidence that make the existence of something more probable or less probable than it would be without them. They are admissible as evidence and aid the court in the final resolution of a disputed issue."

https://law.jrank.org/pages/9454/Probative.html

The VGL puts it this way:

"Probative Evidence

Evidence that has a tendency to prove or actually prove an alleged entitlement."

https://www.veteranslaw.com/glossary-of-terms/probative-evidence/

Can you scan and attach the decision hereH

Cover the C file, name, address etc, prior to scanning it.

Some evidence is not probative at all, but independent medical opinions certainly are, if they are done correctly.

Edited February 27, 2021 by Berta

[GBArmy]

I agree with Shrek; if they didn't list it, they probably didn't consider the evidence. I'm no CUE expert like Berta or Broncovet, but I believe it is a CUE if you submit evidence as the basis of your claim and that deny but do not address your critical evidence listed, it can be a basis for CUE. But, as Shrek advises, keep on appealing.

[Berta]

Years ago the VA said I had 53 issues with them. I dont think I had that many. But in testimony I gave to the H VAC Shreddergate committee I included copies of 53 green and white tracking slips from USPS to tthe Buffalo RO, of Probative evidence I had sent to them , which they had never considered ( until I raised hell) -maybe this is where they got the 53 issue idea.

All of that was definitely probative evidence and the 53 USPS slips included 12 copies of my dead husband's autopsy. They also refused to even consider my costly IMOs.

But the VA granted all of my issues- at this point- because I had learned to fight back.

I think more than ever VA is just skimming through our claims and evidence and might not consider it until we file a Supplemental claim and have to send the evidence again.

 

 

 

 

Edited February 27, 2021 by Berta
added more

[DSIG]

Thanks Shrek, Berta and GBArmy....

I don't have the ability to attach documents to my posts so I cannot enclose the decision letter. I had this ability for two previous posts where I attached documents but this option is not available to me and I also reviewed the YouTube tutorial which confirmed that the option isn't available to me.   

That having been said, I do not intend to appeal this decision based on feedback I received in another forum and from Alex Graham about meeting the criteria for a PTSD increase to 100%.  I understand now that it is a very high bar to clear and I don't meet the requirements.  I thought that the evidence that my doctor provided of my telework arrangement would demonstrate work impairment and this is one of the reasons I filed for an increase, but I realize now that the better approach would've been to submit a TDIU.  

The only good thing that came of this claim submission, even though the C&P exam was emotionally draining,  is that my rating of 9 year did not change so I don't have to be concerned about the VA requesting an Administrative evaluation anytime soon to see if my condition improved.  This will help me as I prepare to file some secondary claims to PTSD.

Even though I will not appeal the decision I find it problematic that the VA did not consider the evidence from my treating physician of 11 years (since it was not listed in the decision) and went with a DBQ from an examiner who saw me less than 40 minutes.  This is indicative of how they actually decide claims denying a veteran due process.

[GBArmy]

DSIG In sports, you may have heard the phrase "Sometimes the best trade you make is the one you don't make." I think it might apply to the BVA also. If, after weighing the evidence, you realize it's not the right move to go for an increase or, to appeal, it can be the best move to do (or not do.) 100% rating is very difficult per the MH rating formula. For PTSD, as is the case for going for any increase, you must know what symptoms are required to get to the next level of rating for that disability, and you must be realistic about how you really stack up to that higher requirement. I also have a great deal of respect for Alex's opinion. If you have 9 years at your current rating, next year, 10 years, is the next hurtle. Take the time to develop secondary claims and make sure you have it right before you proceed. Best of luck going forward brother.