What does “new and material” evidence mean?

What you need to know for your reconsideration or reopened claim


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In my previous blog, I covered the topic of evidence and what it means in VA claims processing. Since then, I’ve received a lot of questions about “new and material” evidence – a topic that seemed to confuse many Veterans.

During reviews of previously denied cases, I would occasionally run into claims where Veterans were denied for a second time because they were confused with what we (VA) meant by new and material evidence.

New and material evidence comes into play when a Veteran files for a request for reconsideration or reopened claim. It is not an appeal, and it is not a notice of disagreement. In both scenarios, applicants are requesting new judgement on previously denied claims. The difference is that in a request for reconsideration, the denied decision is still within the one-year appeal period, while a reopened claim falls outside the appeal period. Both are subject to judgement on the merits based on the submission and evaluation of new and material evidence.

When a Veteran files to reopen a denied claim, we (VA) outline the meaning of “new and material evidence” in our “38 U.S.C. § 5103 Notice” enclosure of our correspondence letter to the Veteran (see figure below):

Definition of new and material evidence

New and material evidence, for reconsideration or re-opened claims, is based on 38 U.S.C. 5103 Notice

What is new evidence?

  • New evidence is simply that – new! It cannot be information that is already in your VA records. This means it is not evidence you have previously provided to VA, or evidence that we have already legally acquired on your behalf (such as military Service Treatment Records or private medical records).
  • VA doesn’t consider cumulative (i.e. information that has previously been established by other evidence concerning the same issue) or redundant evidence as new.

What is material evidence?

  • Material evidence must be relevant and relate to an unestablished fact necessary to prove the claim. It has to have a legitimate influence or bearing on the decision, and cannot be cumulative or redundant. For instance, if you have a new diagnosis for a condition that you are looking to service connect (in which you were previously denied due to lack of a diagnosis) with a reopened claim – that would be considered material evidence that is relevant and has bearing on the decision.

Tip: Evidence previously reviewed in the decision that denied your claim can be found in your notification letter or rating decision. This may help you determine if the evidence you’re considering for submission is cumulative or redundant.

Where can you go for help?

If you still have questions, a VA representative or a Veterans Service Organization may be able to help.

Have a question about what “evidence” you should submit? Leave a comment below!


Mark P. Ledesma is a public affairs specialist with the Veterans Benefits Administration after having served six years as a senior Veterans Service Representative at the San Diego VA Regional Office. Mark is also a Veteran of the United States Marine Corps.

Author

Mark Ledesma

– Mark P. Ledesma is a public affairs specialist with the Veterans Benefits Administration after having served six years as a senior Veterans Service Representative at the San Diego VA Regional Office. Mark is also a Veteran of the United States Marine Corps.

Comments

  1. Steve Erlitz    

    I applied for disability in Oct 2009. I was rejected in 2010 and immediately appealed. Even though the VA closed the appeals twice incorrectly, I finally had an appeal hearing several weeks ago in May. Im awaiting the decision of the ALJ. What surprised me was that all the VA doctors that examined me (three) not one made a determination as to whether or not my claims were service related. This is what our tax dollars go for.

  2. Henry Rucker    

    This entire conversation thread is so convoluted that it brings back horrible memories of dealing with the VA after being discharged from the army after 12 years for disability to benefit the service and learning after I accepted the disability severance pay I have to pay it back. That was in 1993 and I am still paying it back. I recently requested a review for increased disability because nothing has been reviewed since 1994. I go tomorrow for a C&P appointment. I was awarded degenerative arthritis with 0% as S/C. I have lost more than 90% of the use of my hands and there are growths on the bone joints that are visible from the outside. My last P/C (I have had 6 in 3 years) ordered an X-ray and it came back as minor arthritic changes. I can’t write with a pen for more than 5 minutes and the pain is unbearable. Morphine does little to stop the pain. Then I read this and it appears as a method for the VA to twist things around using their own specific jargon just like Social Security tries to force you to eliminate your assets to survive while they sit and laugh at you. They forced me to sell my car so I will have food and a house payment. What is next in this method of mental harassment? They can and often do make the exams more painful than the injury. I am tired of being in physical pain 24X7. No it is not mental. You can physically see it growing on the bones.

  3. Eric s knox    

    I discharge form the Navy 2001 in my medical examination item #44 documents additional dental defects & diseases acceptable ) my dd214 document that I never received My existing dental review . I had a comp & exam done March 2015 the va doctor view my service record and told me I have gum disease, while I was in service I had a upper Gi Endoscopy procedure done by the Va.in April 1997) while in boot camp it’s documents in my service record then I had and Endoscopy procedure done again in 2000 by Va dept. Comp & exam physician pointed out in my service record that since April 1997 I had (aniema) after my labs for comp & exam on March 2015 shows I still am ( Aneima) plus am service connected 30% Ashma) sc% 10 tinnitus ) my question is the va can’t review my medical record and revaluated my gum disease, anema, alone with my sc% ashma & tinnitus medically discharge or relate my condition 100% disability cause I can work due to my ashma, plus I have sleep apnea just got document by va doctor in November 2014 but not rated. Can I get service connected for my medical condition gum disease, aneima, thru va

  4. robert campbell    

    I have heard certain m.o.s. fields get ratings automatically like mechanic get back problems and hearing problems is this true?

  5. Dalmaar Weekes    

    I had both of my knees done surgically in the service. I recently sprained one of them. After going to a orthopedic specialist I found out that the surgery was so bad that if he had to operate on my it would have to be total reconstruction of the knee. I receive a disability payment but how do I get more. And will the surgery be added to my veterans account information. I’m at a lost on how to get my knees reevaluated by the va

  6. Gigi Tharpe    

    I was raped while in the USAF back in 1979-81. It resulted in pregnancy to which the child lived and I have raised. I tried to get compensation for this rape but was denied, due to lack of evidence. We requested my medical files from the USAF and I got them with all the time frame of when i went to the ER at Loring AFB to the time I had my son at Carswell AFB being blacked out. I know who the one was who raped me. I can not afford to have DNA testing done to prove this rape. However my husband at the time also served in the USAF and we had been separated due to joint spouse orders being messed up at the time the rape occurred. I am wondering what I can do now besides be the oldest know rape case trying to get compensation for this. The VA has refused to allow me PTSD treatment as i still struggle at times from this rape.
    I have been service connected due to a surgery done on my left foot which they gave me 10% for two feet and two ankles.
    It is very frustrating to know the man got away with this rape and absolutely nothing was done even though i reported it back then.

    1. Mark Ledesma    

      Gigi, there’s nothing I can adequately say about the event that transpired during your time in service. Over the years, VA has worked hard to improve our services to help military sexual trauma (MST) survivors.

      One thing I want to make sure you’re aware of: We actually provide free health care for physical and mental health conditions for survivors like yourself. No documentation of your MST experience or disability compensation rating is needed to qualify for these services.
      For more MST help and resources, you can reach out to a VA MST Coordinator (http://www.benefits.va.gov/benefits/mstcoordinators.asp#top), call our general benefit information hotline at 1-800-827-1000, or talk to your existing VA health care provider, if you have one.

      Also, a few years ago we prioritized a re-review of MST claims after initiation of new policies and training. If you filed your MST-related PTSD claim before December 2011, we encourage you to request reevaluation of your denied claim from your local VA regional office.

  7. Tonya Miller    

    Had BVA in 2013. DIC claim was filed April 2010. Remanded back to Indianapolis Regional. Have submitted new additional evidence of immunization records showing my husband received shots conclusive of Vietnam status….he died from ischemic heart disease…still waiting..it’s been over 5years now…got evidence submitted but no one will look at…and it was ordered expeditious manner…This is ridiculous.

  8. Rich    

    Hello

    My question is regarding, as I understanding the process, obtaining VA reconsideration for a previously awarded decision. Here is the background: My disability regards hearing loss. I was rated at 10% but it was termed “tinnitus” in the overall rating decision back in 2012. The loss was caused by a bomb blast while I served in Afghanistan back in 2010-11. Before I retired from active duty I was evaluated and fitted with hearing aids by the Air Force (documented in medical records the VA has a copy of). After retirement I sought additional treatment through the VA and I underwent another hearing eval and was prescribed hearing aids in 2014. On that eval sheet, the audiologist indicated hearing loss was due to the blast I referenced. I did not submit “notice of disagreement” at the initial rating point back in 2012. Maybe I should have, but now here is the question: since I’ve be evaluated again by the VA and they have that eval result (and they still have copies of my active duty records, too), do I have a case for reconsideration for a larger rating percentage (above 10 %) for this?

    Thanks for any help you can give.

    1. Mark Ledesma    

      Hi Rich, we’re you ever rated for hearing loss?

  9. Dana Craig    

    I am absolutely at my wits end! I filed an application for aid and attendance in may of 2014 in Alaska after receiving a diagnosis of early onset parkinsons. Due to severe cognitive issues my family thought it best I move to California to be closer to them. After making the move in September 2014, I checked in with the LA VA office and they told me there was no application in the system for me. I filed another application. In December I checked in to see where there were at with my application and again was told I didn’t have anything on file. I filed another application. In January I was evicted from the assisted living facility I was living in because I was not making full payments. (Don’t blame them really) I moved into another facility. Now it is July and I’m being evicted again because I still have not received anything from the VA. I did speak to a rep and was told they do have my application with a file date of January 2015, and it will likely take up to 400 days to get a decision. I am out of options and will be living in a shelter soon! Is there any help available for me?

  10. Richard LeBoeuf    

    My question is this. I was discharged in 1975. I applied for compensation for a right ankle injury and am currently rated at 30%. Its now 40 years later and I am trying to show that my ankle injury ( sub-talar joint fusion ) caused major back problems over the years. My problem is finding a doctor who is willing to connect the two. They say its possible but don’t want to get involved. I applied for an increase 2 years ago, was denied, and filed for reconsideration. I have heard nothing for 2 years. What should be my next step? Any suggestion would be appreciated. Thank you.

  11. Aaron Mellen    

    I had an increase on disability, from 30 to 50 percent, due to an undiagnosed lower back injury in 2014. The VA had me come in for an evaluation. They did not check my lower back, I guess they saw the x-ray. However they did check my neck, which was service connected. The doc forcefully wrenched my head around, to check range of motion. I did not receive an increase in rating for my s.c. neck injury. I love the terminology for “unfavorable ankylosis” by the VA. I guess everyday pain and stiffness is not enough for the past 14 years. I did have a recent visit to the Saco VA clinic. My doctor had me get another x-ray. I made sure I got a copy. I am reassured those results will help me receive the rating I deserve, my recent evaluation did not have that. I went to my local VFW for help filing the proper paper work. Glad I read this.

    1. Alexander cade    

      I have glaucoma, end stage. Visual field less 10 degree in both eyes. Legally blind per VA. What rating do u think I will receive it is SC. CP dine this month.

  12. Cindy Bourgeois    

    My husband has been diagnosed with obstructive breathing and put on a CPAP at night. He has submitted the paperwork through his VA doctor but does not know how to get it included in his disability claim. What does he do now? He is currently receiving benefits for 2 related disabilities. Thank you for your assistance sir! God bless you!

    1. Mark Ledesma    

      Hi Cindy, just to clarify, is he considering filing a claim for a secondary condition?

  13. Steven G posadas    

    I have paid for it with my health

  14. Steven G posadas    

    The Memphis VA has given me 15 years, yes YEARS of RACIST HELL

  15. Jesse Valdez    

    I filed for Ischemia with my doctors affirmation that I had this heart condition and claimed it was caused by exposure to agent orange. The Navy agreed that I was exposed but because I was a blue water sailor I was denied. When this law is changed by congress and “blue water” sailors are included, how will this be treated after more than one year after the original claim?

  16. Darrell austin    

    As usual information that support VA criminal activities prejudicial treatment and diognostic delays that shaft the victim of injury and helps only to inform you of exclusionary rules that exploits a system that takes takes 30 years to fix what may have been addressed in two years leaving 15 20 maybe 30 years of back pay left off .

    VA is perposly omitted information on 80% of the claims the biggest problem is the wrong claim date.
    detroit shredded hundreds of pounds of mail. And often you claim will have political bias such as ptsd and or mst or hazing injuries. These are plentiful and most just want off the roller coaster of mean spirited adversarial medical care that you receive until you capitulate with they think your life is worth.

    justice is a misnomer and the leader ship has sailed. There is no logical answer to the capricious treatment and weaponized medical care design to coerce rather than to help you.

  17. Wilfredo Arguelles    

    I’ve been dealing with my case for 9 yrs. In November went again to pension and compensation I am receiving 10% The doctor said that was to little let’s see if we can get you 30or 40 % added and so did psychiatrist and I’m still waiting what can I do please help service connected .

  18. Patricia A Abrams    

    Would like to see the answers to these questions so I do not have to re state them

  19. Eugene Adamczak    

    I filed several years for service connected injury. Because so much time had passed, my civilian files were destroyed. I left the Air Force in 1978 and believed my service medical files would always be available to support a claim. Boy was I wrong. My entire file was sent to the St. Louis Depository and I was told when I requested my entire medical file that it was destroyed in a fire. At least I visit the local VA hospital for care.

    1. Tim Bryant    

      Eugene,

      Don’t believe the fire excuse. I was told that for years. When I got my Congresswoman (Elizabeth Warren) involved, all my service records miraculously appeared in my mailbox, three days later.

      1. Steve Erlitz    

        I was active from 74-77 and went to work for the USAR in 77. How many times were we told re-enlisting veterans records were destroyed by the fire in 1967…Even though most were discharged after 1970!!!!!

  20. Roger Rutherford    

    I’m 100% receiving benefits since Feb 2014. Filed dependency claim Aug 2014 for my wife using online form. There have been no requests to me requesting additional info or even copy of marriage license (I’veI talked to Waco Regional who told me license not necessary..my claim is in Development status..don’t worry..Waco just has big backlog of dependency claims. .they’ll get to it and will be retro to Aug 2014. Well…its coming up on a year now..I’m worried my claim will fall into the “claims over 1 year old will be deleted” and I’ll have to start all over with no retro date. I’ve seen VA facebook posts about how easy dependency claims are processed and can be done within an hour…I even had a Waco rep tell me he could do it in 15 minutes…but..for some reason I’m at the back of the line but no one can tell me why..as I said..I’ve received no requests for additional info…I filled out the online form..easy-peasy…right? Wrong. What’s going on with my claim?

  21. Jason rivera    

    I have a 40% rateing on my lower back but within the last few years I have had 3 surgerys and one of the surgerys was for menius tear in my knee and I still have pain and walk with a limb, can I open a claim for secondary condition due to my back for my knees now.

    1. Mark Ledesma    

      Hi Jason, yes you can. Make sure to provide evidence linking your knee condition to your lower back.

  22. Alvino Hart    

    Below is the condition of my eye in 2007:
    OD fl-;fn-%;fp-%;md:lp?
    OS fl-1/13.fn-n/a;fp-0%md-0%;md:-29.45
    {May 4, 2007 thru May 1, 2009} done by Dr. Neil T. Atodaris in Phoenix VA

    Below was done by Long Beach VA Blind Rehabilitation Clinic:
    OS fl-1/13;fn-n/a;fp-0%;md:-30.51
    {November 21, 2013} eye exam done by Dr. Sally H. Dang OD

    Dr. Dang certify I am Legally Blind. Base on the above eye exams mean I was legally blind from 2007 and Dr. Atodaria never mentioned anything about the eye exams he performed. Phoenix VA is negligent because they delete data from my medical records to hide the true evidence, which would show guilt by the VA.

    1. Mark Ledesma    

      Hi Alvino, was your claim denied, reduced, or severed?

      Also, for your privacy/safety, please refrain from posting specific medical information here as it is a public forum.

  23. paul    

    ARE PHOTO’S PERMITTED?

    My original claim goes back to 1970. 10% for gunshot wound. Ptsd basically unknown and the VA was not volunteering any information on your mental state unless you were absolutely suicidal..!
    I am not one to complain, but i have always had pain problems . The problem with the process is if you do not crawl like a beaten dog you get nothing. I have another wound I never received compensation for but have the original photo’s and the scars. I am not interested in drugs and have always live a drug free life. i just get on with life.
    PSTD well for people like me who went on to College and family kept busy with success so your mental scars are small and your achievement over shadows most reminiscence, we are viewed as to bad you have no problems, well that is not true your mind always wonders and anger fits occur. , of course when you get older and more time on your hands this the problem. An idle mind gets pretty scary with scary thoughts. All the VA does is give you a phone line . are you wanting to harm yourself ! call 911. What does that do for a basic normal Combat Veteran? We are not crazy!
    If your intelligent if you have success in life, if you have not been a burden to the VA nor your Country because you have kept your body fit, and mentally strong. If you were wounded and persevered Combat, have achievement in life rather than be a welfare burden.
    File a Law suit against the VA! it is the only way you will be heard and the Publicity will not be grand for the VA. Their are many free avenues for Vets like me. Filing the VA claim for me is a horrendous path now.
    I see their are firms you to hire to assist you, booklets, to instruct you, face book accounts, Law firms, it is pure non sense . all because I requested that my wounds are a problem etc. Oh You have to file a claim” best just get a lawyer and in civil court with prudent citizen people, you presenting Photo’s help’s.

    i

    1. Mark Ledesma    

      Hi Paul, from one Veteran to another, thank you for your service. Yes, photos are permitted as evidence.

      Have you visited http://www.ptsd.va.gov/public/index.asp It contains plenty of resources for Veterans suffering from PTSD. I hope this helps. Semper Fi

  24. Jim Laubler    

    Should I assume this also pertains to an “increase” in rating due to evidence showing an issue has gotten worse? (ex. 30% rating on knees. New xrays show an increase in erosion.)

    1. Mark Ledesma    

      Hi Jim, yes, apply the same thought process when you’re submitting a claim for an increase.

  25. Jackie w Dodson    

    I’m rated 90% paid at 100%. If I should pass on will my wife be paid half of the 90 or 100%. How can I obtain that extra 10%

    1. Jim Bunker Ngwrc    

      Mark, why should a veteran be asking for a request for reconsideration when a NOD should be just as fast. If the request for reconsideration takes to long the veteran loses out on the date of claim if he file the appeal.

      If he files the NOD he will not lose that.

      1. Mark Ledesma    

        Hi Jim, I wrote the blog for people who are confused about the topic. By no means was I advocating for this method over another.

        Additionally, VA will retain the original date of claim if the decision is overturned in a claim for reconsideration – even if VA processing delays the final decision. I hope this clarifies things.

    2. Jim Bunker Ngwrc    

      Jackie Dodson, when you pass on your wife will get what is called DIC. You will need to be rated 100% or TDIU (as you are) for so long about 10 years, or pass from your SC condition.

      The amount is set by law, She should also get something from SS too.

    3. Mark Ledesma    

      Hi Jackie, your spouse will need to apply for Dependency and Indemnity Compensation for VA monetary benefits. The rates are different from your current monthly benefits. Here’s a link for more information about the benefit: http://benefits.va.gov/COMPENSATION/types-dependency_and_indemnity.asp

  26. Richard Conner    

    My claim was done my the VA regional in Detroit, my claim was granted but the decision was all mess up. I would like to know how you are miss diagnosed then you reopened your claim win and they don’t go back to the first day you open your claims

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