Jump to content



Search



Toggle shoutbox Shoutbox Open the Shoutbox in a popup

@  arng11 : (26 November 2014 - 11:30 AM) Everyone Enjoy The Holidays And Be Safe.
@  eagle1012004 : (26 November 2014 - 10:10 AM) Have A Happy Thanksgiving All!!!
@  Tbird : (22 November 2014 - 04:54 PM) Tbird Accepted To 2015 Conference: V-Wise: Another Entrepreneurship Project Of The Whitman School Of Management Http://ow.ly/ej9Qg
@  Tbird : (22 November 2014 - 04:13 PM) Arng11 Thank You For Your Contribution To Our Funding Campaign.
@  britton : (22 November 2014 - 02:57 PM) Thank You Ms T For Starting This Web Site For All Veterans, You Helpd Me And My Family And I'll Be Forever Gratful To You & Hadit.com
@  Tbird : (22 November 2014 - 08:19 AM) Thank You All For Helping With The Funding The Site. It Is Really Helping!
@  Tbird : (22 November 2014 - 08:18 AM) Britton Pm Me And I. Can Check This Out For You
@  britton : (22 November 2014 - 06:44 AM) What Does ''you Missed Your Quota For Postives Votes Today'' Mean??
@  coriemboh : (19 November 2014 - 08:29 AM) Hold Time For Peggy Was Approximately 1 Minute. That Was 17 Minutes Ago. They Really Need To Change This Hold Music.
@  Tbird : (17 November 2014 - 02:42 PM) Stretch Thanks For The Extra Contribution To Our Fundraiser This Month.
@  maxwell18 : (16 November 2014 - 09:04 PM) I Still Have To Bitch About The Navy Hosp Cutting My Meds By 2/3 On My Norco. I Contacted Customer Service Or What Ever You Want To Call It Who In Turn Contacted The Navy Hosp Pensacola Commander Who In Turn Did Nothing. Thanks To All The People That Are Affair Of There Jobs And I Feel That Medical Malpractice Should Come Into Place. I Guess Just Do What Ever They Want To Because They Can, But Don't Give A Sh T For The Vets That Suppose To Being Supporting From All The Military  organizations. This Is Not The Way They Have Been Trained And Promised To Do. 
@  carlie : (16 November 2014 - 11:26 AM) Delayed Onset Tinnitus - Ref To Va Training Letter 10-028 - Link - Http://veteranclaims.wordpress.com/2014/05/06/single-Judge-Application-Va-Training-Letter-10-028-Delayed-Onset-Tinnitus/
@  carlie : (16 November 2014 - 11:03 AM) Here's A Good Tinnitus Link To Check Out From M21-1 Change Dated Jan 10,2014 - Http://veteranclaims.wordpress.com/tag/section-B-Duty-Military-Occupational-Specialty-Mos-Noise-Exposure-Listing-Fast-Letter-10-35-Tinnitus-Hearing-Loss-Vbms-Rating-Decision-Tools/
@  Asiadaug : (16 November 2014 - 02:08 AM) "rolled" Not Ruled! :)
@  Asiadaug : (16 November 2014 - 02:07 AM) Thanks. I Have Seen The Fast Ltr 10-35 And Have Seen Cases Where The Va Has Apparently Agreed That Tinnitus Can Have Delayed Onset. I Did Not In Looking Over The Fast Ltr See Where They Had Ruled 10-028 Into That. And, I Am Not Sure In The Vas Issuance Of ‘policy’ Type Letters How They Might Roll In Previous Instructions Into Newer Ones. Maybe There Is Some Intranet Traceability Capability? I Was Just Curious As There ‘appeared’ To Be Conspicuous Absence Of That 10-028. I Am Assuming 10-028 Was Written In 2010. But It May Be I Should Not Assume Anything.
@  carlie : (15 November 2014 - 05:56 PM) Asiadaug - You Might Be Looking For Fast Letter 10-35, Http://www.hadit.com/forums/topic/40962-Va-Fl-10-35/ Also Check Out This Link To Links For Delayed Onset Tinnitus - They All Refer Back To Fast Letter 10-35, Https://www.google.com/webhp?sourceid=Chrome-Instant&ion=1&espv=2&ie=Utf-8#q=Tinnitus, Delayed Onset, Va Fast Letter
@  Tbird : (15 November 2014 - 07:50 AM) Asiadaug Searched All Over For Va Training Letter 10-028 But No Luck So Far.
@  Asiadaug : (15 November 2014 - 02:12 AM) Several Cases I've Run Across Mention Va Training Letter 10-028 With Apparent Discussion About Delayed Onset Of Tinnitus. I Have Been Unable To Locate That Trng Ltr. Any Suggestions?
@  Tbird : (12 November 2014 - 05:56 PM) Stretch Thanks For Contributing To Our Fundraising Campairg
@  Tbird : (12 November 2014 - 04:01 AM) Atomicwidow Thank Your For Donating To Our Funding Campaign.

Photo
- - - - -

Thoughts On "new And Material Evidence" Standards.


This topic has been archived. This means that you cannot reply to this topic.
60 replies to this topic

#41 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22280 posts
 

Posted 17 July 2012 - 03:34 PM

I have written this before but am happy to do so again. If it were not for the brilliant (and I mean brilliant) summation Hoppy made on my behalf before the Board of Veterans Appeals, I am not convinced that I would have won and had the satisfaction of reading "100%, Permanent and Total, no further examinations scheduled" yesterday.
What was so striking to me then and now was the hours and hours he put into it for me researching and on the phone.


dean,
My mind is a bit mushy today as I can't remember reading the issue
or what was needed to overcome and get it awarded.
Can you post a link for me to go back and read
what issue's were denied or lowballed and what was submitted to
help support the 100% P&T from BVA or a link to the BVA case itself - if it's on line now,
(probably much too soon for this).
Thanks

#42 deanbrt

 
deanbrt

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 769 posts
 

Posted 17 July 2012 - 04:19 PM

Carlie, I have discovered, as you guessed, a lot of the information will take 2-3 weeks to process into the system. i was awarded 30% for my legs in 2004 after being run over by a 105 Howitzer in the service. The timeline after that- (my best guess)

August 2006 claim for secondary
denied that fall/NOD
appeal to BVA
BVA tv hearing early 2007
remand to RO
denied in 2007
BVA appeal into 2008
denied
appeal to CAVC
remanded to BVA late 2009
remanded by BVA to RO August 2010
RO denies August 2011
back to BVA Feb. 15, 2012
BVA grants April 4, 2012

What Hoppy did is specifically refute line by line the assertions made in the denial of August 2011 in terms that would make Perry Mason proud and with documented supporting evidence. Prior to that, (and I will generalize) I had a nationally known VA attorney who could put you down in two heart beats (complete with profanity) but could not get off his ass to spend an hour a month for you. Thank God for guys like Hoppy. I am stunned still today on how much time he spent on me through the goodness of his heart.

My appeal might have gone through BVA in 2010. the IMO was strong enough. My crack national atty got it remanded from CAVC back to BVA for not referencing my SSDI records. Then he wrote BVA he waived their right to see them. They then remanded my appeal to the RO for the SSDI records. It cost me two more years and financial ruin and yes, I am bitter toward him....

#43 deanbrt

 
deanbrt

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 769 posts
 

Posted 17 July 2012 - 04:22 PM

the issue was service connection for physical pain to MDD.

#44 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22280 posts
 

Posted 17 July 2012 - 05:02 PM

Carlie, I have discovered, as you guessed, a lot of the information will take 2-3 weeks to process into the system. i was awarded 30% for my legs in 2004 after being run over by a 105 Howitzer in the service. The timeline after that- (my best guess)

August 2006 claim for secondary
denied that fall/NOD
appeal to BVA
BVA tv hearing early 2007
remand to RO
denied in 2007
BVA appeal into 2008
denied
appeal to CAVC
remanded to BVA late 2009
remanded by BVA to RO August 2010
RO denies August 2011
back to BVA Feb. 15, 2012
BVA grants April 4, 2012

Thanks - I will look forward to reading the April 4, 2012 decision to grant once it makes it to the internet,
perhaps you will feel comfortable posting a link when that time comes.
It might end up being helpful to others that are in close circumstance.

What Hoppy did is specifically refute line by line the assertions made in the denial of August 2011 in terms that would make Perry Mason proud and with documented supporting evidence.
I don't remember reading through the August 2011 denial.
Sure sounds like Hoppy was real helpful in overcoming "the assertions" made in that decision.
We always have to attack any untruths in the evidence of record and get the attention properly
focused on the "documented supporting evidence".
​This is certainly a key element to winning appeals.

Prior to that, (and I will generalize) I had a nationally known VA attorney who could put you down in two heart beats (complete with profanity) but could not get off his ass to spend an hour a month for you.
Once an attorney or firm takes a case, whether SSA, VA, car crash, etc...
the majority of them spend VERY little time with the client, IMO I would say it would be quite rare for them to
spend much time either in person, phone or emails.

Thank God for guys like Hoppy. I am stunned still today on how much time he spent on me through the goodness of his heart.
I feel you were very fortunate to have Hoppy's assistance in your appeal.

My appeal might have gone through BVA in 2010. the IMO was strong enough. My crack national atty got it remanded from CAVC back to BVA for not referencing my SSDI records. Then he wrote BVA he waived their right to see them. They then remanded my appeal to the RO for the SSDI records. It cost me two more years and financial ruin and yes, I am bitter toward him....
As long as the lawyer/firm gets a remand - they have met THEIR goal.
JMHO



#45 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22280 posts
 

Posted 17 July 2012 - 05:19 PM

the issue was service connection for physical pain to MDD.


dean,
So you increased from 30 percent to IU due to secondary SC of MDD
(from pain) as a result of SC'd disabilities ?
Is this correct or did they grant/increase SC for additional conditions?

Troy -
I'm sorry to have trampled over your topic.
Perhaps we can continue dean's situation as a new topic.

Also, a big ditto on Pete53's reply. I too am quite disappointed the job did not pan out.
I am disappointed for the veterans that will not receive your assistance as I feel you would have
been beneficial to argue their issues.
BUT - I am not too sorry for you in this not working out.
I feel that this specific job was not meant for your best interest and they would have tried to taint you.
The exact right thing/place for you will come and you will do great things for many VBA claimants.

#46 deanbrt

 
deanbrt

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 769 posts
 

Posted 17 July 2012 - 05:29 PM

As long as the lawyer/firm gets a remand - they have met THEIR goal.

Yes.

perhaps you will feel comfortable posting a link when that time comes.

Too personal.

so you increased from 30 percent to IU due to secondary SC of MDD
(from pain) as a result of SC'd disabilities ?
Is this correct or did they grant/increase SC for additional conditions?

They increased me to 80% scheduler for the now service connected secondary MDD and then granted me IU for the balance. I have been on SSDI since December of 2006...

#47 deanbrt

 
deanbrt

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 769 posts
 

Posted 17 July 2012 - 06:05 PM

I have shared with Carlie via private message what Hoppy wrote on my behalf to BVA.....

#48 Troy Spurlock

 
Troy Spurlock

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 119 posts
 

Posted 17 July 2012 - 08:30 PM

Also, a big ditto on Pete53's reply. I too am quite disappointed the job did not pan out.
I am disappointed for the veterans that will not receive your assistance as I feel you would have
been beneficial to argue their issues.
BUT - I am not too sorry for you in this not working out.
I feel that this specific job was not meant for your best interest and they would have tried to taint you.
The exact right thing/place for you will come and you will do great things for many VBA claimants.


Thank you Pete and Carlie...you are both correct, especially that last part Carlie.

My wife and I, and other veterans (and friends) I work with at the Sheriff's Office (to include the Sheriff) believe just as you stated. That my passion and devotion for helping veterans would be stifled by the very system I fight against; so I am better off on my own.

-----

Carlie,

Also thank you for not closing the thread and seeing the respectful nature in which Hoppy and I have interacted; I do respect his views and his latest reply most of all.

------

To the individual whom Hoppy helped and stated he refuted the VA "line by line," it may come to surprise the both of you...but I do exactly the same thing. My correspondence with VA on behalf of the veteran can get rather lengthy in refuting each unsubstantiated position of theirs...then again, the VA brings it on itself.

Sadly sometimes (rather more often than not) it takes someone at the BVA level to see the unsubstantiated position of a VARO and reverse it by granting the benefits sought on appeal.

-----

Carlie,

No apoligies on changing subjects within the thread, no harm no foul.

----

Hoppy,

Recently reviewed the veterans case and in the list of evidence considered for the denial of the colon cancer claimed as rectal cancer associated to AO exposure, they only considered medical treatment reports from the VAMC from October 31, 2004 going forward. He was diagnosed with the cancer prior to that and had surgery on October 14, 2004 with two corrective surgeries thereafter for complications.

If the VARO never listed (i.e. considered) the evidence most pertinent to his claim, would that medical diagnosis and surgery report not be "new and material evidence" since it was never made available to a rater at the time of the decision (this being said, or paraphrased nearly word for word out of the legal books I have which quotes the statutes on what is now considered "new" and "material" evidence)!?!

----


Thank you all for your contributions to this disucssion; and your kind words about my not getting the job as a VSO for my county.

Over 4 years I have tried 3 times...last time was the last.

I can better serve veterans on my own rather than under the umbrella of the VA "system" of their policies and procedures.

Respectfully,

TS

TS

#49 Chuck75

 
Chuck75

    HadIt.com Elder

  • HadIt.com Elder
  • PipPipPipPipPipPipPipPip
  • 1499 posts
 

Posted 18 July 2012 - 07:13 AM

VA and evidence on file vs. new and material.
A problem that I see is that the VA has made general statements concerning review etc. of records in the past that taken one way would lead a veteran to think that the VA did in fact review the records. References to specific records favourable to the claim were often non existent, even when the records were clearly in the VA possession, and included in a veteran's copy obtained from the VA.


Thank you Pete and Carlie...you are both correct, especially that last part Carlie.

My wife and I, and other veterans (and friends) I work with at the Sheriff's Office (to include the Sheriff) believe just as you stated. That my passion and devotion for helping veterans would be stifled by the very system I fight against; so I am better off on my own.

-----

Carlie,

Also thank you for not closing the thread and seeing the respectful nature in which Hoppy and I have interacted; I do respect his views and his latest reply most of all.

------

To the individual whom Hoppy helped and stated he refuted the VA "line by line," it may come to surprise the both of you...but I do exactly the same thing. My correspondence with VA on behalf of the veteran can get rather lengthy in refuting each unsubstantiated position of theirs...then again, the VA brings it on itself.

Sadly sometimes (rather more often than not) it takes someone at the BVA level to see the unsubstantiated position of a VARO and reverse it by granting the benefits sought on appeal.

-----

Carlie,

No apoligies on changing subjects within the thread, no harm no foul.

----

Hoppy,

Recently reviewed the veterans case and in the list of evidence considered for the denial of the colon cancer claimed as rectal cancer associated to AO exposure, they only considered medical treatment reports from the VAMC from October 31, 2004 going forward. He was diagnosed with the cancer prior to that and had surgery on October 14, 2004 with two corrective surgeries thereafter for complications.

If the VARO never listed (i.e. considered) the evidence most pertinent to his claim, would that medical diagnosis and surgery report not be "new and material evidence" since it was never made available to a rater at the time of the decision (this being said, or paraphrased nearly word for word out of the legal books I have which quotes the statutes on what is now considered "new" and "material" evidence)!?!

----


Thank you all for your contributions to this disucssion; and your kind words about my not getting the job as a VSO for my county.

Over 4 years I have tried 3 times...last time was the last.

I can better serve veterans on my own rather than under the umbrella of the VA "system" of their policies and procedures.

Respectfully,

TS

TS



#50 deanbrt

 
deanbrt

    E-8 Senior Chief Petty Officer

  • Senior Chief Petty Officer
  • PipPipPipPipPipPipPipPip
  • 769 posts
 

Posted 18 July 2012 - 07:35 AM

"Sadly sometimes (rather more often than not) it takes someone at the BVA level to see the unsubstantiated position of a VARO and reverse it by granting the benefits sought on appeal."

Agree. There are those that favor the DRO prooess. I am not one of them. I wanted things to BVA as fast as possible.

#51 Berta

 
Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 29048 posts
 

Posted 18 July 2012 - 07:39 AM

Chuck, I experienced that myself a few times and what really got me was that the "non existent" records were the ones most critical to my past claims.

I found a critical Peer Review , which the Regional Counsel as well as the Peer Review doctor, had verified to me was done, here at the Bath VAMC, in a few weeks after the VA got my SF 95 and 1151 claim , faxed to Regional Counsel, then , as the RC told me, he hand delivered to the VARO , as VA regional counsel in those days was only a few blocks away from the RO and it was also filed with the OLMA (Office of Legal/Medical VA ) and then it suddenly vanished and VA said it never existed.

In 2003 I found it at the very bottom of my C file.So I used it for my last 3 claims.

By the time the OGC had awarded my FTCA settlement, they too had no record of this crucial 'non' existent Peer Review either.Good thing i had considerable other probative evidence.

Non existent my --s.

#52 Hoppy

 
Hoppy

    HadIt.com Elder

  • HadIt.com Elder
  • PipPipPipPipPipPipPipPipPip
  • 1529 posts
 

Posted 22 July 2012 - 05:48 PM

Just to give some perspective on what I saw in deanbrts claim. I think I posted some of this before in a specific thread and I will post it here at risk of jumping on Troy’s question about cancer issues which I will address on Tuesday. This is basically because Dean’s claim is on the top of my head and I want to do some more research on cancer.

The issue I dealt with was service connection of a condition secondary to an already service connected condition. The problem with Deans BVA denial is that it was denied without full medical development. Even though the law firm advancing the claim had obtained a report from their own clinician in support of the claim, the clinician did not read and rebut two C&P exams that were used as evidence against the claim. Additionally, the examiner stated something to the effect that that it is well known in the medical community that there is a relationship between the veterans secondary condition and his already service connected condition.

The BVA even mentioned that they thought the report from the law firm’s clinician was weak because the report did not mention the two c&p exams. The other weakness that I saw was that the clinician used vague terminology regarding what was known to the medical community.

I had previously read BVA cases many years ago which cited some court definition as to what types of medical evidence have probative value. There were two classifications. One was clinical findings and the other was peer reviewed research published in journals. I also read cases in which peer review research was mentioned yet the research was not specifically identified, the claims were remanded requesting that the research be obtained prior to a decision. I felt that dean’s claim should have been remanded. However, I guess the BVA was looking for the magic word “research” rather than a vague reference to what is known to the medical community. My position paper identified the existence of such research and I even attached a study that referenced that the determinations linking the conditions they studied which were also related to dean’s claim had also been verified by similar published studies. In other words I reinforced the evidenced in favor of the claim.

Step two was to attack the evidence they cited as being against the claim. I argued that the c&p examiners who wrote the reports that were used against the claim showed a bias by not advising the BVA of the existence of research showing that the conditions were linked. I developed additional attacks on the c&p examiners reports. However, the specifics will require that I go into too much detail about specific medical issues which I do not do without the veteran’s consent. As far as I know the claim was awarded without a new C&P. I feel all they needed was the research linking the two conditions and to raise doubt that the c&p examiners report was based on relevant facts.


#53 Hoppy

 
Hoppy

    HadIt.com Elder

  • HadIt.com Elder
  • PipPipPipPipPipPipPipPipPip
  • 1529 posts
 

Posted 23 July 2012 - 08:50 PM

Troy

I was not able to research cancer claims, so I will go with what I got. I have not been involved in cancer claims. This may be relevant to my particular way of dealing with claims. The DAV published reports many years ago that their experience with the VA shows that there are certain types of claims that were not specifically identified by the DAV that they believe the VBA deals with in an adversarial manner. The DAV did not identify exactly what types of claims these were. However, my experience tells me they involve mental health claims and back conditions. The claims I deal with are usually already denied and I go to extremes to advance the claims ASAP. All this being said a cancer claim may not be as difficult as the issues I discuss due to the fact that the VA could be more friendly to cancer claims or there may have been some changes in the medical principals in a cancer claim that the VA has become aware of since the denial of the claim you are working on.

would that medical diagnosis and surgery report not be "new and material evidence"

Not necessarily, It depends on the medical evidence. Assuming the Oct 16, 2004 report is considered new and they were not in possession of this report at the time of the original decision, determining that it is material at this time would also be required. It is a two step process. Additionally, there are laws and M-21 instructions in addition to the new and material evidence laws that will come into play.

“New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38

C.F.R. § 3.156(a) (2008).”



THE ISSUE OF NEW EVIDENCE


The evidence in the Oct 16, 2004 report will be reviewed and they will determine as stated above that the evidence relates to an unestablished fact. In your case I would think that the unestablished fact will be a diagnosis not considered or any other issue identified by the doctor that would raise the reasonable possibility that the claim can be substantiated. I will bet if the diagnosis appears in any of the reports in their possession from Oct 31,2004 and later they will say the issue is not new and you will need to find another significant issue in the Oct 16, 2004 report that would raise a reasonable possibility the claim can be substantiated.





THE ISSUE OF MATERIAL EVIDENCE


I am not sure what CFR’s you have been reading. However, the above definition of new and material is cited in BVA decisions within the last year. The last sentence in the above CFR states in order to be material it must raise a reasonable possibility of substantiating the claim. The claim to re-open will be based on an interpretation of the medical evidence more than an interpretation of the law. Interpretation of this sentence is often used by the BVA to determine the evidence added to the file although new, is not material. I feel the raters take advantage of their discretion when determining whether or not the evidence presents a reasonable possibility of substantiating the claim.

The fact that they have discretion to determine whether or not the new evidence would raise a reasonable possibility to substantiate the claim brings into play issues of current diagnosis, current symptoms and the reasons for the previous denial. There are other laws or instructions in the M-21 that specifically address the issue of current symptoms and current diagnosis that they will bring into play. Additionally, they might invent false objective standards of law. If my memory serves me correct the issue is whether or not the cancer is a soft tissue carcinoma.

If the report you are submitting as new and material does not have terminology that jumps off the page relating the diagnosis, symptoms or other medical principals needed for the raters to understand the claim, It would not surprise me if they argue that the records do not show a post surgical or current diagnosis of a soft tissue carcinoma and tell you in a duty to assist letter that you need to provide medical evidence of a current diagnosis of the soft tissue carcinoma or whatever condition you are seeking to have service connected. They will not schedule C&P exams nor will they take any other steps to advance the claim until you get them the evidence they ask for. I attached/pasted a scan from the section of a duty to assist letter that was sent to a veterans I worked with. The requirement of a current service connectable diagnosis or explanation of current symptoms is so central to the advancement of an open claim that I am sure it will become an issue when considering whether or not new evidence has a reasonable possibility of substantiating an already closed claim.

You can submit the new and material report along with any literature you feel will help the raters understand your claim. However, I prefer to bombard them with new doctor’s reports at the time I file new and material evidence with strong statements that include a nexus statement from a doctor. A nexus opinion from a doctor is not required to reopen a claim. However, I try to get nexus statements from a specialist when possible to avoid any more delays. Believe it or not raters have ignored nexus statements and refused to re-open claims when I got the reports from primary care doctors, forcing me to get reports from specialists. In your case the issue may not be nexus. It could be clarification of a diagnosis, or clarification as to specify that the veteran’s case involves a soft tissue carcinomas or other cancer that is service connectable.

Also consider that sometimes the raters consider a pre surgical diagnosis as “provisional” and if the same diagnosis does not appear in the post surgical reports, they will disregard the original diagnosis. Although, I feel this type of decision requires that they play doctor and is illegal, I have encountered this and chose to re-establish the diagnosis by submitting records with a current diagnosis of the original condition, rather than get involved in a lengthily appeal. If establishing the original diagnosis is an issue and the veteran is still being treated at a VAMC look for something called an active problems list in the veteran’s records. See if the diagnosis is still on the active problems list. Also, the veteran can request at any time that the VAMC provide him with his current diagnoses. A strong report would involve getting a specialist to review the medical file and re-establish the diagnosis. The raters can get real stubborn when it comes to re-opening a claim.

Attached File  TROY NEW.jpg   38.95KB   6 downloads

Edited by carlie, 28 July 2012 - 04:39 PM.
I edited 2 post just to make the font size larger for reading.


#54 free_spirit_etc

 
free_spirit_etc

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 1984 posts
 

Posted 24 July 2012 - 01:48 AM

As a result of my training, developing claims for labor law lawyers, I personally rely heavily on case decisions in which the CFR’s are applied. I do not rely on CFR’s that are not contained within a case. There is too much room for misapplication. I usually cite CFR’s from decisions I am familiar with in my posts. In my 14 years on hadit I have read close to 1000 BVA cases covering many types of claims.

This is a very interesting point. I had usually thought of it in the opposite direction and go back to see exactly what the regulation says. Of course, I don't have near the knowledge or experience that you do with such issues.

What complicates this somewhat for me is that even if the regs were applied a certain way in a certain case doesn't mean they will apply the same way in a very similar case. You see a lot of that in the cases too - where the lawyer will argue that something that was decided in one case applies in their specific case. Sometimes the court agrees and sometimes it doesn't.

This is where knowledge and experience come in - the wisdom to know the difference.

ETA: Oh yes... also count me as a member of the Hoppy Fan Club!

Edited by free_spirit_etc, 24 July 2012 - 01:49 AM.


#55 free_spirit_etc

 
free_spirit_etc

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 1984 posts
 

Posted 24 July 2012 - 02:01 AM

Also thank you for not closing the thread and seeing the respectful nature in which Hoppy and I have interacted; I do respect his views and his latest reply most of all.


Thank you for your respectful arguments. Actually, I somewhat understood what Hoppy was saying - but by the third round of the argument I really "got it." The most important thing I got out of it was that sometimes we might get and idea that we think what won a claim, but that mind-set might make us overlook what really won the claim.

I am going to go back and re-read some of the things I have been reading to help my claim and see if I notice some things in a new light.

Without the interchange between you and Hoppy, I would not have developed a better understanding of some important points I needed to understand.

Thank you both!

#56 free_spirit_etc

 
free_spirit_etc

    E-9 Master Chief Petty Officer

  • Master Chief Petty Officer
  • PipPipPipPipPipPipPipPipPip
  • 1984 posts
 

Posted 24 July 2012 - 02:15 AM

Hoppy,

Recently reviewed the veterans case and in the list of evidence considered for the denial of the colon cancer claimed as rectal cancer associated to AO exposure, they only considered medical treatment reports from the VAMC from October 31, 2004 going forward. He was diagnosed with the cancer prior to that and had surgery on October 14, 2004 with two corrective surgeries thereafter for complications.

If the VARO never listed (i.e. considered) the evidence most pertinent to his claim, would that medical diagnosis and surgery report not be "new and material evidence" since it was never made available to a rater at the time of the decision (this being said, or paraphrased nearly word for word out of the legal books I have which quotes the statutes on what is now considered "new" and "material" evidence)!?!

----


I was just reading a case the other day where the Court said something that might apply to this. The case was about whether a widow would reopen a claim for accrued benefits - since reopening a claim requires new and material evidence; yet a claim for accrued benefits must be made on the record as it existed at the time of the veteran's death.

http://www.veteransl...aum_09-3557.pdf


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3557
PEGGY L. QUATTLEBAUM, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 28, 2011 Decided January 5, 2012)

The Court said:


"Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is
an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date
of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be
considered and therefore would not be material to the claim – fails upon examination. This is
because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"
38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the
beneficiary's death, even if such evidence was not physically located in the VA claims folder on or
before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there
may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's
possession at the date of the veteran's death (and therefore are considered to be in the file at the date
of death), yet have never been presented to the Agency decisionmakers. Any such document
submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify
as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not
previously submitted to agency decisionmakers."), and might also be material if it (along with
evidence previously in the record) "relates to an unestablished fact necessary to substantiate the
claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the claim.").

#57 Troy Spurlock

 
Troy Spurlock

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 119 posts
 

Posted 28 July 2012 - 09:20 AM

I was just reading a case the other day where the Court said something that might apply to this. The case was about whether a widow would reopen a claim for accrued benefits - since reopening a claim requires new and material evidence; yet a claim for accrued benefits must be made on the record as it existed at the time of the veteran's death.

http://www.veteransl...aum_09-3557.pdf


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3557
PEGGY L. QUATTLEBAUM, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 28, 2011 Decided January 5, 2012)

The Court said:


"Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is
an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date
of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be
considered and therefore would not be material to the claim – fails upon examination. This is
because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"
38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the
beneficiary's death, even if such evidence was not physically located in the VA claims folder on or
before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there
may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's
possession at the date of the veteran's death (and therefore are considered to be in the file at the date
of death), yet have never been presented to the Agency decisionmakers. Any such document
submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify
as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not
previously submitted to agency decisionmakers."), and might also be material if it (along with
evidence previously in the record) "relates to an unestablished fact necessary to substantiate the
claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the claim.").


That is great research and information!!! Thank you for this and your previous post...very good analysis of the discussion and point of view!!!

#58 Berta

 
Berta

    HadIt.com Elder/SVR Radio Panelist

  • SVR
  • PipPipPipPipPipPipPipPipPipPip
  • 29048 posts
 

Posted 28 July 2012 - 03:59 PM

I am a little lost trying to follow all this but I do need to make 2 points:

“colon cancer claimed as rectal cancer associated to AO”

These are not AO presumptive cancers. If this stems from a Soft Tissue sarcoma-(Not carcinoma) (there are about 34 STS cancers on the AO presumptive list, and STS cancers are fairly rare) that will take an IMO to fully explain to VA that a AO STS cancer ( a doctor would have to identify the actual STS type) has caused the colon and/or rectal cancer,with a full medical rationale.

Also I disagree with free spirit's statement:
“What complicates this somewhat for me is that even if the regs were applied a certain way in a certain case doesn't mean they will apply the same way in a very similar case. “

in this respect. The regulations control how the VA decides every claim but every claim has different evidence,specific solely to the disability the veteran is making the claim for.
If VA doesnt apply the regs properly,they have committed a CUE. Actually bonafide CUEs really dont happen that often or we would sure be filing more CUE claims against the VA.

Similiar cases have no weight at all with the VA in deciding any specific claim.

It is medical evidence that awards a claim. Even if the VA commits a major VCAA error ,in applying the VCAA regulations, yet the evidence still favors the veteran, the veteran will succeed.



As to accrued benefits -the regulations for survivors are not similar in any way to those regarding veterans claims.
Accrued benefits must be applied for within one year after the veteran's death. The only exception is regarding Nehmer .

The court stated:
“Thus, pursuant to this regulation, there
may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's
possession at the date of the veteran's death (and therefore are considered to be in the file at the date
of death), yet have never been presented to the Agency decisionmakers “

That was true in my claim for accrued.It IS rare and takes thoroughly accessing what is in the deceased veteran's file and what isn't there but should be there. When I submitted what should have been in my husband's medical files but was Not there,I won my accrued claim. It was in VA's possession but not available to the “decisionmakers” until they got it from me. I had gotten these records from the VA doctor who treated my husband and he was stunned that VA didnt have copies of these significant medical records in his VA med rec files.He had treated my husband for over 2 years with extensive therapy, gave him
multiple psychiatric tests and hypnosis sessions.
The VA shrink my husband had prior to him for many years was the VA employees shrink and didnt document a thing because he feared it could somehow interfere with any veteran or civilian's VA employment. He was a lovely man but It was quite a battle for me to get my husband (after having a major stroke), to the Real PTSD VA shrink (psychiatrist) because he didht work for the VA anymore, SSA had already awarded him solely for PTSD ,the initial VA shrink didnt document anything and he didnt have a clue on treating PTSD anyhow.

Survivors often have lots of leg work to do. I hope all the vets here have made sure their spouses are fully aware of their disabilities ,treatment, med profiles and medical records and will know where all that stuff is if they die.

Edited by Berta, 28 July 2012 - 04:06 PM.


#59 carlie

 
carlie

    Moderator/Admin/HadIt.com Elder/SVR Radio Panelist

  • Admin
  • PipPipPipPipPipPipPipPipPipPip
  • 22280 posts
 

Posted 28 July 2012 - 04:55 PM

For all that are following in this thread a good refresher for study is at the link below.

Also, of importance to keep in mind is that no matter what -
VA owns the scales and it takes good evidence and proper rebuttal to
overcome and sway doubt towards the claimants favor.

Relative Equipoise resulting in application of the BOD, is one of the most
important regs we have, to help get issues granted.

M21-1MR
http://www.benefits....MS/M21_1MR3.asp

Chapter 5 - Evaluating Evidence and making a Decision

#60 Hoppy

 
Hoppy

    HadIt.com Elder

  • HadIt.com Elder
  • PipPipPipPipPipPipPipPipPip
  • 1529 posts
 

Posted 29 July 2012 - 12:03 PM

Troy, Free, carlie any other concered readers

The thought of any accrued or retroactive benefit did enter my mind. However, I did not address this because Troy was addressing new and material only. The information you added does clarify some issues when trying to get an earlier effective date. It is always a good idea to add perspectives as yoiu and carlie did. The possibility that there was some significant proceedural error that caused the pre-surgical report not be be in the file or properly addressed could result in a CUE is a consideration. However, that missing medical report would need to be the difference between winning an losing the claim. Additionally, the CUE aspects had been considered by Troy.

As far as new and material goes

As far as weighing medical evidence goes the requirement when re-opening a claim is more liberal than the equipoise rule. I did not go into much detail on my previous post other than to say I feel raters take advantage of their discretion. A reasonable possibility in my opinion is a lower threshold of evidence than the equipoise rule.

“Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).”

“In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992)”

The reason I feel you should prepare for the worst by getting strong medical opinions and not assume they will re-open a claim is because even in view of the above cases the RO refused to re-open my angioedema claim even though I provided them with evidence of both an inservice and post service diagnosis of the same condition with the same symptoms. The reason for the previous denial was that I was not treated in the military for the claimed post service condition. Additionally, they refused to re-open a claim I was working on even though I obtained an opinion from the veteran’s primary care doctor that after a review of the entire medical file including the SMR the veterans condition was caused by military service. The RO invented some false objective standard that was not even supported by any CFR to say that the primary care doctor’s opinion was not credible. Rather than wait for an appeal to re-open the claim I filed a notice of disagreement on the failure to re-open and most importantly I obtained another opinion from another VA staff specialist. They usually award the claim date based on the date the new and material is submitted, which they did in this case based on the report from the VA staff specialist. As I have said on many occasions before an RO rater I know who rated claims for 20 years jumped sides and became an SO for a large organization because he was of the opinion that RO raters were not properly trained.

#61 Troy Spurlock

 
Troy Spurlock

    E-5 Petty Officer 2nd Class

  • First Class Petty Officer
  • PipPipPipPipPip
  • 119 posts
 

Posted 31 July 2012 - 07:53 PM

This thread right here and all the responses therein is a PERFECT example why this forum is so important and useful to all veterans.

The different perspectives, ideas, and citations given based on everyone's individual and collective experience is what makes this forum an invaluable resource, and I am glad to have been a part of it over the years; and I plan to contribute more as time goes on.

Thank you all for your replies, especially Hoppy and Berta and Carlie as well...the latter two I have been more familiar with over the years and Hoppy, you're new to me but you're A-Okay in my book! Posted Image

Once I get a draft of my argument prepared, with the veteran's permission (not using his name, etc.)...I may post it to get feedback before sending to the VARO. If not the whole draft, maybe parts I need fine tuning.

Thanks again, and please...everyone, keep the ideas, thoughts, and case citations coming because they are far more helpful than you know.

Sincerely,

TS