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. 

[Hucast21]

54 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.  

To make it seem like the VBA is doing a good job or who knows really.

As far as I know, only CAVC cases set precedence not BVA decisions.

When my attorney sent an argument letter in lieu of a hearing, CAVC cases were cited to prove service connection and the incompetence of the C&P examiners.

The judge basically threw out the negative C&P exams because my attorney argued the examiner’s opinion was inadequate and cannot be used for adjudication purposes as the basis for denial of service connection.

Edited May 24, 2021 by Hucast21

[Carl the Engineer]

The cases may be similar, but they were are different when they are adjudicated by who presented and who judged.  It sounds like you need a better doctor or a better lawyer or both.  It was and is a good question.

I have not yet crossed the Rubicon (appealed) with any of my claims yet, even my denials, so I know next to nothing.

But that could change,

Hamslice

 

[Berta]

BVA cases are not evidence, but can contain many US CAVC  case Citations that ARE evidence, because they are precedent setting decisions.

This goes for General Counsel Precedent Opinions as well.

Also vets who have filed under AO HBP due to the NAS report, and who have used that report as evidence, have been awarded in some cases, at the BVA , or remanded in other cases, for a proper consideration of the NAS report that states their is 'sufficient' association of Agent Orange exposure to Hypertension.

 

BVA gave me a clue long ago in a case I won at the Regional Level and I didnt know I was supposed to ( or my vet rep was supposed to) withdraw my appeal.

Thet rendered the case as Moot because I had already suddeeded but added the clue-

The clue they stated was a Legal statement, So I used their Legal statement when I won another different claim. My RO would not accept the BVA legal statement and would not pay me, so I called General Counsel up and told them they owed me more money ( FTCA award) and of course they didnt, the RO did, and OGC ordered them to pay me. 

The BVA's legal statement ,in my case, referred to my case but it could have referred to anyone in the same situation.

But I never found a similar claim- 1151 death of my husband -changed to direct SC death.

The VA had to refund the offset of my FTCA award.

1151 death awards ( due to malpractice) bring very little in the way of any benefits in addition to DIC. Direct SC deaths are far different.

 

 

 

Edited May 25, 2021 by Berta
cloud

[pawmbi]

Thanks everyone for the responses.  I'll expect it to get kicked back and I'll just do a HLR.  I filed it Monday before I asked this question and the average time for their decisions have been a week or less.  

[pawmbi]

So the VA accepted the BVA cases as new evidence...did not kick it back to me.  But here is the rub:  The are doing ANOTHER C&P Exam????

Granted this Exam is a "records only" and I do not have to report for an actual exam but is this giving the VA another bite at the apple because that is 

exactly how I feel?  In the NOD I pointed out how incomplete the examiner was from a single paragraph to missed checked boxes by the examiner.  Now they

sent it back to the same doctor for him to correct those mistakes and make a stronger exam?  I know I'm venting here but that makes no sense to me..how do 

they get two bites at the apple to correct the C&P Exam just to continue the denial.  Also, I am being speculative because I haven't been denied yet but I'm sure 

its coming this week sometime....

 

[Berta]

The new C & P exam- same doctor-  but It could possibly go in your favor-this time.

That CAN happen.

I will go over this whole thread- to see if you attached the initial denial letter ( and Evidence list)

because with that, maybe we can help more.

Good for you for using the BVA citations,as I am sure they were case involving VA case law  that should have been applied to your claim.

The BVA web site holds a wealth of info!

Thank you for using it!

The BVA decisions for a search are on the right side pf this page -for anyone who needs--

https://www.bva.va.gov/