BVA Decision New Evidence?

[pawmbi]

Did a search and didn't find an answer to this question....but would previous BVA decisions be  considered "new" and "relevant" evidence to open up a Supplemental Claim?  I thought about just submitting for a HLR but I want these two cases I found that are on point a part of the record.  There is no other evidence I am submitting.  My argument is the rater did not follow already existing precedent which is what these two BVA cases represent. 

[Carl the Engineer]

While precedent fits in the definition of evidence, I don't think so in the VA's eyes.  From what I am reading, they are looking for medical evidence.

Also, precedence has circumstances, and your case(s) would have to be exactly the same circumstances as the case offered.  Now, if it was "news worthy" precedent, like "Blue Water Veterans", and you were denied, but now you would be covered, then maybe.  However some of them get denied.  You have to prove all of the other elements as well as being at sea within the requirements.

From what I am currently reading there is a big difference between precedence from laws and regulations and then from prior court cases, within the VA.  So, a lot to read and comprehend.  Maybe someone has used precedence "only" as evidence and will opine.  I would like to know what happened. 

But, anything is possible with the VA, and the worst they can do is deny,

Go for it,

Hamslice

 

 

 

[Vync]

It never hurts to reference a BVA decision or explain legal errors with a supplemental. Just be sure that you do your homework and any laws, regs, or court precedents involving the error were in effect at the time of your decision. For example, some law from 10 years ago might no longer be in effect if your denial was recent.

I filed two CUEs a while back, but the VA asked me to submit it as a supplemental. I was surprised that one was granted as a supplemental, but the other was denied (and I appealed it as HLR and then later BVA). The CUE I won at supplemental was for a decision that became final 20 years ago. The VARO failed to follow what the regulations required at that time regarding reducing a rating percentage for disabilities SC due to aggravation. I explained the error in the decision, what the C&P examiner said, what the rating criteria were, what the VARO determined, and most importantly what 38 CFR required. I also explained that if not for the error, I would have been granted a higher percentage. They failed to follow the regulation and just reduced my rating my 10% because I had it before service. All the did o was verify what I provided, conceded the error, and corrected it. Keep in mind that benefit of the doubt or judgement calls were not a part of it.

[Hucast21]

3 hours ago, pawmbi said:

Did a search and didn't find an answer to this question....but would previous BVA decisions be  considered "new" and "relevant" evidence to open up a Supplemental Claim?  I thought about just submitting for a HLR but I want these two cases I found that are on point a part of the record.  There is no other evidence I am submitting.  My argument is the rater did not follow already existing precedent which is what these two BVA cases represent. 

Nope because every BVA case is different. You cannot use previous BVA decisions to apply to your claim. 

[pawmbi]

1 hour ago, Hamslice said:

While precedent fits in the definition of evidence, I don't think so in the VA's eyes.  From what I am reading, they are looking for medical evidence.

Also, precedence has circumstances, and your case(s) would have to be exactly the same circumstances as the case offered.  Now, if it was "news worthy" precedent, like "Blue Water Veterans", and you were denied, but now you would be covered, then maybe.  However some of them get denied.  You have to prove all of the other elements as well as being at sea within the requirements.

From what I am currently reading there is a big difference between precedence from laws and regulations and then from prior court cases, within the VA.  So, a lot to read and comprehend.  Maybe someone has used precedence "only" as evidence and will opine.  I would like to know what happened. 

But, anything is possible with the VA, and the worst they can do is deny,

Go for it,

Hamslice

 

 

 

Just to give a little more context.  I was denied SC for Migraines based on my SC OSA.  I had a nexus letter that, of course, found my migraines were aggrivated by OSA.  Did video C&P, examiner of course opined migraines were not secondary to SC OSA.  The BVA case is exactly the same circumstances and facts.  Migraines secondary to SC OSA.  That decision outlined the probative weight that should be given when you have competing etiology opinions, is in my case.  in the denial this is the rater's decision:  "While we acknowledge your medical opinion letter submitted xxxx The examiner provided a negative opinion with the following rationale..."

LOL I got a copy of the examiner's rational (and it was in the decision letter) and it was 3 articles the examiner quoted.  Anyway the BVA decision talked about how those two opinions should be evaluated for the probative weight.  To me, the deciding factor that I want from that BVA decision is this language...

When, after careful consideration of all procurable and assembled data, a reasonable
doubt arises regarding service origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. See 38 C.F.R.􀀀 3.102. See also 38
U.S.C.A. 􀀀 5107; Gilbert, supra. Given the facts of this case, and resolving all reasonable
doubt in the Veteran's favor, the Board concludes that the criteria for secondary service
connection for migraine headaches are met

Again, exact same set of circumstances as in the BVA case and my case except I think the Veteran may have had two IMO to my one.  But the Board does not speak to that.  

[pawmbi]

29 minutes ago, Hucast21 said:

Nope because every BVA case is different. You cannot use previous BVA decisions to apply to your claim. 

Then why have these cases published if we can't use them to keep regional offices from continuing to commit error after error.  If they would make following certain steps precedent, then that my avoid some denials.....I dunno just a thought but of course the VA doesn't always make sense.  

[Vync]

9 minutes ago, pawmbi said:

Then why have these cases published if we can't use them to keep regional offices from continuing to commit error after error.  If they would make following certain steps precedent, then that my avoid some denials.....I dunno just a thought but of course the VA doesn't always make sense.  

Reasonable doubt is actually part of the regulations the VA is supposed to factor in. If the evidence in favor is in balance with evidence against, the VA is supposed to find in favor of the veteran.

However, just having an opinion is not always good enough by itself. A few years ago, I filed a claim and included an "as likely as not" opinion from a non-VA endocrinologist. The VA did a C&P and denied, also quoting some article. The denial was based on the fact that the non-VA doc did not perform specific tests required to confirm the condition. I checked and they were correct. The VA repeated the tests and they were negative, so I accepted the decision. 

Another one of my claims was for "heart disabilities" including heart attack and included a "more likely than not" nexus opinion from a non-VA neuro doc involving a heart attack. Yeah, it's a bit weird to have a neurologist write an opinion for a heart attack claim. In this case, it involved migraine meds that caused the heart attack.
  The VA C&P nurse practitioner indicated they reviewed my nexus letter and quoted some article. The odd part was they focused their entire opinion around a heart rhythm disorder that was denied years ago and completely ignored opining for or against my nexus letter. The VARO sided with the NP and said the decision  was more persuasive because my doc did not review my service records). I requested HLR review and won. They found my doc's nexus was very thorough, met all VA requirements for secondary SC, and was granted under relative equipoise/benefit of the doubt.

I am not sure if those examples help, but they show it the errors can be made by our own nexus docs or even the VA.