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90 days for evidence

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So under AMA vets get 90 days after a hearing to submit additional evidence.  My appeal status has not changed to "Your appeals file is open for new evidence", it is currently "A judge is reviewing your appeal" .  My question is, if I presented enough evidence to warrant a full grant, are they required to hold the case open for 90 days or can they issue a favorable decision?   

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Excellent question!  Most likely, however, its "moot".  The reason is that its gonna take longer than that to process your appeal ANYWAY, whether or not they allow new evidence, as tens of thousands of Veterans are awating appeals.  If you did succeed in waiving the 90 day evidence period, it is unlikely to make your claim go faster.  The only way for your claim to be advanced on the docket is to request a hardship advance, such as you are 80 years old and terminally ill, or your home is being foreclosed on.  My home was being foreclosed on, in my application process, and VA knew it, as I told my doctor, and its in my records.  It did not matter, VA delayed my benefits anyway on the hamster wheel and I lost my home.  The bright spot of this is that I eventually did get my benefits, and got a better home than the old one!

    In other words, your claim is "in line" for adjutication, and that line is well over 90 days.  Further, if you do submit new evidence after its adjuticated, but before a year after the decision, this new evidence should be considered anyway, under 38 CFR 3.156.  

    Given you are gonna have to wait anyway, its in your best interest to be ABLE to submit new evidence prior to the decision if you discover:

1.  Maybe Va did not have some evidence, perhaps you found that out after receiving a copy of your cfile, which also takes VA a long time to process.   You could have gotten your cfile AFTER your one year appeal period expired, so you had to appeal it without viewing your cfile.  

2, Or, one of your doctors, in a new exam, makes statements favorable to your claim, such as a nexus, or the degree of your symptoms, or even the date(s) you first had the malady.   As an example, your doctor could review an xray, and determine this is a very old fracture, probably from 10 years ago (while you were still in service), which had not previously happened.  You may not have had that evidence in your file previously, because xrays were previously not taken or because the doctors never did render a professional opinion about the age of a fracture.  

      In at least the 2 circumstances, above, its in your best interest to submit the new evidence before the decision, to save time going on a hamster wheel of remands and new appeals.  There could be other reasons, also, where its in your best interest to submit new evidence.  

 

Edited by broncovet
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