The VA just denied your disability claim.
You’re left feeling frustrated and discouraged. Is your only option to throw in the towel?
It might seem like it since the VA can come across as if their decisions are final. However, there’s an opportunity for recourse that a VA disability attorney can assist you with: introducing new and material evidence.
Adding new and relevant evidence to a VA case allows you to reopen your claim and appeal the VA’s decision. Exactly what is “new and material” evidence and how can you use it to your benefit?
Details about What the VA Considers “New and Material Evidence”
- Evidence – What It Means for VA Disability Claims
- New and Material Evidence – What is It and Why is It Important?
- What is “New” Evidence?
- What is “Material” Evidence?
- How New and Relevant Evidence is Used
- VA Reconsideration for Effective Date
- A Veteran’s Options for Claims Appeals
- The 4 Best Types of New and Material Evidence
- What Happens After You Submit New, Relevant, and Material Evidence?
- Woods and Woods – Doing All They Can to Help You Get Paid
Evidence – What It Means for VA Disability Claims
First, let’s start by taking a look at what the VA means when they say they need evidence for a claim.
Evidence is anything that you or your representative submits to the VA to support your disability claim. It also includes information that the VA obtains on your behalf.
The Code of Federal Regulations (Title 38) states that evidence can include:
When you file a Fully Developed Claim via e-Benefits, it’s assumed that you’ve also uploaded all necessary evidence to support your claim.
New and Material Evidence – What is It and Why is It Important?
New and material evidence is necessary when you’re requesting that a previously denied claim be reopened for reconsideration. For example, you could include new and material evidence to reopen a claim for service-connected post-traumatic stress disorder (PTSD) if your claim falls outside the one-year appeal period.
New and material evidence may also be necessary when filing an appeal or notice of disagreement. In all these cases, your claim will be subject to judgment based on your submission and an evaluation of the new evidence submitted.
For the most part, new and material evidence pertains to claims that have been closed/dismissed/denied for more than 12 months. In some cases, veterans who had claims denied decades ago will submit requests to reopen those claims now.
Here, one of our VA disability lawyers talks about what we do when we appeal your case to the Veteran’s Administration.
What is “New” Evidence?
New evidence is the new information that’s not already contained in your records with the VA, including:
- Records the VA obtained for you
- Records you submitted to the VA
If you were to submit this evidence again in a supplemental claim, the VA would deny your request due to redundancy.
What is “Material” Evidence?
Material evidence is evidence that is relevant to your claim. It needs to relate to a fact previously unestablished that can prove your claim.
To be relevant and material, the evidence must be something that could potentially have a bearing on your claim, such as a new diagnosis. Sometimes, veterans will make a claim for a service-related injury or illness but all they have for proof are their symptoms. The VA wants a definitive diagnosis if possible.
Even if it’s been decades since the VA denied your claim, a diagnosis from your physician now is new and material evidence, and you can request to reopen your claim. The information is relevant, not redundant, and can definitely have a bearing on the decision about your claim.
How New and Relevant Evidence is Used
As mentioned, one of the main reasons to submit new and material evidence (also referred to by the VA as new and relevant evidence) is to reopen a denied claim. You can request to reopen your claim to prove a service connection to your injury/illness based on:
- Service records that haven’t already been submitted (perhaps because of a lack of relevance at the time of the original filing)
- Medical treatment records, including obtaining a new diagnosis
You can also request to reopen a claim if you feel you’ve received an unfavorable VA disability rating or if your rating has changed since you originally filed your claim.
Another reason to submit this type of evidence is to change your effective date.
VA Reconsideration for Effective Date
New and material evidence can prove that the VA should’ve granted you approval at an earlier date. The principle behind the reconsideration of a denied claim based on 38 CFR § 3.156 service records is called the implicit denial doctrine.
Implicit denial refers to a situation like this:
A veteran exposed to Agent Orange in Vietnam submits a VA disability claim. Their claim states that they now have service-related Type II diabetes. Their medical records indicate that the vet is also dealing with another health condition, such as cancer or ischemic heart disease.
Even though the VA recognizes the links between Agent Orange and cancer or heart disease and the vet is eligible to receive disability compensation, they might not receive it. Because their claim and disability rating are based on the Type II diabetes diagnosis only, that’s all they’re receiving disability for.
Now, the veteran can request for VA reconsideration with new evidence. You may wonder: Will the VA reopen my claim in this situation? With sufficient evidence, they will, and the VA reopened claim’s effective date could mean you’ll receive back payments.
The effective date is one of the most important parts of your VA disability claim. This video explains the importance of your effective date from an experienced VA disability lawyer.
A Veteran’s Options for Claims Appeals
When your claim has been denied or you’ve received what you feel is an unreasonable or inaccurate disability rating, you have three appeal options.
A Higher-Level Review
In this situation, you’re not allowed to submit new and material evidence. The people reviewing your case will make a judgment based on the same information you originally provided to the VA or that they obtained on your behalf. This is called a Higher-Level Review because your claim goes to a higher judge to decide your case.
Notice of Disagreement
When you submit a Notice of Disagreement (NOD), you’re appealing your case to the Board of Veterans’ Appeals (BVA) and you have three docket options.
Supplemental Claim
A supplemental claim is a request for a new review on a claim that the VA has already decided upon. You now have new and relevant evidence for the VA that will establish a service connection to your disability.
The 4 Best Types of New and Material Evidence
What type of evidence should you include when requesting to reopen your claim? New and material evidence can refer to evidence in the following categories.
1. Service Records (DD214)
A DD214 form is your Discharge from Active Duty papers (Certificate of Release). On this form, anyone reviewing your claim will be able to find:
- How long you served
- Reason(s) for discharge
- Reenlistment eligibility
- Awards earned
- Medals awarded
- Highest rank
- Pay grade while on active duty
- Total military overseas or combat service
- Any specialties, designations, or classifications
2. Medical Records
Your medical records can include those obtained while you were an active duty service member. They can also include VA medical records. If you’ve seen a private physician for examinations and diagnostic testing, those records are eligible for inclusion. Also included are the results of your C&P examination, which will show those reviewing your claim the current severity of your illness, injury, or condition.
Since there exists the potential to change your VA disability rating and your effective date, you must see your doctor for regular check-ups. Any changes in your health can put you in a position to increase your disability benefits. The sooner your doctor recognizes those service-related changes in your health, the sooner you’re able to gain access to those benefits.
3. Employment Records
Employment records include any files regarding disciplinary action, as well as performance reports.
Additionally, you can include VA Form 21-4192 in this category, which is a Request for Employment Information in Connection with Claim for Disability Benefits. You’d fill out this form to claim individual unemployability.
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4. Lay Statements
A lay statement (or buddy statement) is a form of evidence that’s based on written statements by:
- Friends
- Family members
- Those you served with
- You
Statements from non-medical individuals can bolster your case and help fill in the gaps if there’s any missing information on your service or medical treatment records. Lay statements can also give the person reviewing your case a better idea of your current health and living situation.
Lay people can provide information/evidence:
- To describe the illness, event, or injury sustained in service that caused your disability or worsened your symptoms
- That will support the need for raising your disability rating by outlining your symptoms, how they’ve progressed, and how severe they are now
- Showing how your disability impacts your ability to do work
Here one of our VA disability lawyers goes over the questions Woods and Woods, The Veteran’s Firm, is often asked about veterans’ disability claims and appeals.
What Happens After You Submit New, Relevant, and Material Evidence?
When you have new and material evidence to present to the VA, you’ll need to fill out a Supplemental Claim Form from the VA. In this form, you’ll outline:
- The type of benefit you’re looking for
- The issues you want the VA to review (you can have them review everything or just a single complaint from their denial)
Included in your filing will be other relevant forms, such as those completed by non-VA medical providers, as well as any written statements from non-medical, non-VA individuals.
How long will the process take? Typically, it takes four to five months to process the claim, review all the evidence, and make a judgment.
Woods and Woods – Doing All They Can to Help You Get Paid
Woods and Woods, The Veteran’s Firm, is a family-owned and operated firm. We’ve been in operation since 1985. The commitment to veterans that moved us to open their doors over 30 years ago still motivates us today.
You’ve served your country valiantly and have a tremendous self-sacrificing spirit. One way your country gets to return the favor is by supporting you when you need them. If you’ve been injured or developed an illness while in active duty – or an illness worsened during your time in service, you deserve compensation.
No matter how menial you may think the illness/injury to be, you still deserve governmental aid. Let Woods and Woods help you get the disability benefits that you’re owed. It will be one more way we – and your government – can show our appreciation for your service.
Not sure if you qualify for VA disability benefits? Check out our free disability benefits calculator to get an idea of how much you’re entitled to receive.