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Nod & De Novo Review Vs Reconsideration


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29 replies to this topic

#1 Bonzai

 
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Posted 02 August 2009 - 02:43 AM

I have tried looking this up, but I am getting confused.

What is a De Novo Review?

What is a Request for Reconsideration?

Is a Notice of Disagreement (NOD) automatically one or the other?

#2 Berta

 
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Posted 02 August 2009 - 09:45 AM

A claimant can file a Request for Reconsideration within the one year NOD time limit.

BUT this does not stop the NOD clock.

VA may or may not act on the Reconsideration request.I filed one and then filed the NOD with only days left (I marked my calender) as the recon request still produced no acknowledgement of my evidence.

Then the VA sent me a letter asking if I had filed an I-9 already (which at some point I did-you would think they knew that)and sent me another letter which I forget what it said-
then the BVA awarded my direct SC death claim and this changed the entire aspect of the Recon claim.
It is rendered moot as soon as the VA makes a SMC consideration.I had to write to the RO and explain that to them and tell them that although the I-9 has been filed, they cannot send this claim to the BVA without consideration of the recent BVA award letter and a proper award letter from them-in compliance this time with the BVA award.

You need evidence for a Reconsideration Request that they have not seen before or listed as evidence-
or you need to prove that the evidence they had was not properly addressed.
For Reconsideration Requests of CUE claims, you need more legal evidence.

It can make things go faster but that is few and far between.

De Novo means a 'new look'- a DRO reviews the claim after a denial has been made and a DRO de Novo has been requested.
The DRO job description helped me to get them to CUE a decision as it was not followed correctly by the DRO.

It pays to read their job description here at hadit-if you request a DRO review.

#3 vaf

 
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Posted 03 August 2009 - 02:13 PM

I think that the DRO review process catches a lot of errors that are CUE in nature, without the veteran actually calling the claim by that term literally.

I avoided that term with a couple of veterans I've worked with recently, whose denials were overturned by the DRO. I argued legal points, not medical ones. The evidence was there, and in the end, it was in fact a CUE claim without calling it that.

#4 allan

 
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Posted 03 August 2009 - 03:28 PM

Since the DRO I had was the VARO rater that denied the claim. It simply got rubber stamped with the same SOC.

#5 Lee_USAF

 
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Posted 04 August 2009 - 10:11 AM

Since the DRO I had was the VARO rater that denied the claim. It simply got rubber stamped with the same SOC.


Allen, Me thinks I have been rubber-stamped as well. Almost verbatim on the de Novo Review decision as was in the original. Stinks, huh?

#6 john999

 
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Posted 04 August 2009 - 10:14 AM

If I had doubts I would file a NOD and ask for a DRO Hearing. This has worked for me. If you lose at the hearing you can appeal to the BVA.

#7 blanco63

 
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Posted 04 August 2009 - 11:35 AM

please see the july 8, 2009 topic - reconsideration and my 7/15 response. reconsideration is the best way to go. it has always worked for me.

#8 allan

 
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Posted 04 August 2009 - 11:33 PM

Is it Reconsideration first, than file an NOD?

#9 Ricky

 
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Posted 04 August 2009 - 11:53 PM

Reconsideration = you have new evidence in support of your claim that was obtained and/or was not available prior to a rater making a decision on your claim. In most cases it is quicker than if you start the appeal process. All requests for a reconsideration have to be clearly marked as such..... ie "THIS IS A REQUEST FOR RECONSIDERATION: based upon the evidence attached I ask that the VA review such information a reconsider their prior decision made on my claim dated blah blah blah. IF YOU DO NOT CLEARLY INDICATE THAT IT IS A REQUEST FOR A RECONSIDERATION OF YOUR PREVIOUS RATING AND YOU HAVE ATTACHED NEW EVIDENCE they will 99.9 percent of the time automaticaly consider it a disagreement and begin the appeals process (see below).

DRO/DRO de novo review = the DRO process is the begining of the APPEAL PROCESS. It is referred to as THE INFORMAL APPEALS PROCESS and allows you to receive one more look at your claim by a senior rater assigned to the appeals team before going into the formal appeals loop. It is prompted if you send in a piece of paper (any type)to the VA after you receive your rating in which you clearly state that you DISAGREE WITH THEIR DECISION. This is normally done if you have no new evidence (at the time you prepare your Notice of Disagreement) however, you feel the need to argue legal and medical points in your claim that you feel the rater did not properly consider. ie.... you feel that the rater did not consider specific guidance or law contained in CFR 38 and if he/she had they would have awarded your claim or you feel that based upon their failure you were awarded a 30 percent rating verus a 70 percent rating. Now even though you may not have had new evidence when you prepared you Notice of Disagreement that does not mean you can not submit new evidence collected by you during the process.

De novo, as has already been provided, is a legal term that simply means " a new look/review of a case without taking into consideration the previous decision". Normally when a vet submits a Notice of disagreement they will ask that it be done on a De novo basis. What this is supposed to do is take the last decision completely away from the file, give it to the senior rater and asked him to process the claim as though it was never processed (now if you think this is done then I have some bridges to sell you hahahaha). However, as you read on this site and others listen to the war stories about rubber stamped or carbon copy DRO reviews!


To your third question NO NO NO NO! A Notice of Disagreement is the start of the appeals process and will never ever be considered by the VA as a reconsideration!!! If you meet the requirements for a reconsideration then YOU BETTER MAKE SURE it is clear in your request!

If you do submit a reconsideration you have to keep in mind that all the while you are fishing and drinking beer waiting on the VA to reconsider your claim THE APPEALS TIME LINE IS TICKING and you only have 12 months to begin the appeal from the date of your decision letter. This is important in that when you ask for the reconsideration the rater may not deem such an action appropriate (remember it is for when you have new evidence that is not associated with your claims file at the time the decision was made - it is not to simply argue a point with the rater). If an when he makes a determination, which could take 6-8 months, he may not notify you. Now you are sitting there all dumb, fat and happy sucking them suds and catching catfish think the VA is gonna do you right. The next thing you know its been 13 months since you heard any thing from the VA so you call and they say "your file has been closed" and now you cry!!!!!!! What happened was whilst you was a thinking they had to see it your way, the rater never got back to look at your reconsideration or he did and was to lazy to send you even a computer generated form and now you time to appeal (Send in your notice of disagreement) has expired!@!!!!!!!!! and they closed your claim out causing you to lose possibly 3-5 years of backpay. So the moral of the story is stay active in your claim. Keep in mind that no matter what you think you have that should be reconsidered, the VA may not think so and sometimes a recon could take a while even though you hear stories of them being handled within two weeks (its possible)

The appeals process goes like this:

Vet gets rating - he has 12 months FROM THE DATE OF DECISION to submitt his notice of disagreement. The NOD begins the informal appeals process

Nod submitted and vet gets the Statement of the Case from the DRO - vet now has 60 days to file the VA Form 9 which will be attached to the SOC. This is caused the formal appeals (or the perfection of the appeal which began by the submission of the NOD) process and will get you to the BVA.

Vet gets a DECISION LETTER (not an SOC) from the BVA. - he now has 120 days to file his NOTICE OF APPEAL with the court.

Long post but I hope it helps to understand the process. If anything seems strange or don't make sense it is just my nightly meds kicking in hahahaha.

#10 Bonzai

 
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Posted 05 August 2009 - 12:28 AM

Clown Man,

THANKS!!! Exactly what I was looking for and wondering about. I hope it helps others!

Louis

#11 Pete53

 
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Posted 05 August 2009 - 09:41 AM

Clown:

Thanks that was a very good explanation.

#12 tssnave

 
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Posted 06 August 2009 - 03:26 PM

Where in the M21-1MR or CFR is Reconsideration addressed?

Please post a link to the citation for Reconsideration of VA Claims.

Thanks,
TS Snave

#13 allan

 
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Posted 07 August 2009 - 02:25 AM

§20.1001 Rule 1001. Filing and disposition of motion for reconsideration.


(a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans' Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.


(b) Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans' Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.


© Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:


(1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion.


(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108)

#14 allan

 
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Posted 07 August 2009 - 02:29 AM

Motion for Reconsideration Example:

February 2-, 2004
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, D.C. 20420.
re: Veteran: [veteran name].
C-file: [vet ssn]

MOTION FOR RECONSIDERATION
or, in the alternative,
CLAIM OF CLEAR AND UNMISTAKABLE ERROR

Dear Sir/Madam:
Enclosed is a copy of the VA Form 22a, signed by the above veteran appointing
me as his representative in connection with VA matters. Enclosed you will find a disk
for your convenience. On it you will find the veteran’s 1135 page C-file, a rough index
of the C-file, and a copy of this Motion, with exhibits. These documents may be viewed
using an Adobe Acrobat reader. It should save the time you might otherwise spend
sending to the St. Petersburg VA Regional Office for the C-file.
This letter relates to a reduction in the veteran’s VA benefits which occurred on
March 1, 1982, following a letter addressed to him dated Jan 05, 1981 (Exhibit 1). Prior
to that time the veteran had been rated at 90% disabled, with individual unemployability,
resulting in a 100% disabled total rating. As the result of this action in 1981, the
veteran’s compensation was reduced from $1220 (approximately) to $740 per month.
Mr. [last name] has remained at the 90% rating from that day forward, with the
exception of a few times when he received a total rating due to hospitalizations.
The reduction of benefits was finally upheld in a decision of the BVA dated
January 17, 1984. That is the decision for which the veteran seeks reconsideration. In
the alternative, that is the decision that the veteran contends contains clear and
unmistakable error.
FACTS
The veteran is a combat Marine veteran of the Tet offensive in Vietnam in 1968.
After 14 months hospitalization on the hospital ship Repose, in Guam, and at the
Oakland Naval Hospital, the veteran was finally medically discharged with a diagnosis
of dissociative disorder. The record is clear that this condition was attributed to his
combat experiences. (Exhibit 2). He is also recorded as having received numerous
shrapnel wounds and an injury to his pelvic area arising from having been hit by
sandbags during an shell burst on his bunker.
Following his hospitalization, but before discharge, the veteran was involved in
an automobile accident in Mississippi in which he received additional injuries to his
pelvic area and hips. On August 13, 1970, the veteran was accorded a 10% rating for
anxiety, and a 10% rating for his hip condition (Exhibit 3).
After extensive treatment for his various conditions, and multiple claims and
ratings, the veteran was accorded a rating on September 20, 1978, in which he was
determined to be 90% disabled, with entitlement to IU plus special monthly
compensation for lost of use of lower left extremity at the (k) rate. The effective date for
the IU was Nov. 13, 1972. (Exhibit 4).
On November 29, 1978, the Veteran discovered his wife was having an affair
with her gynecologist and in a fit of rage he stabbed her to death. On November 21,
1979, after stating that he had no recollection of the incident and having entered a
general plea of guilt, he was sentenced to life in prison by a Florida court. (Exhibit 5).
The January 5, 1981, letter taking away the veteran’s IU rating was the first that
he heard about the VA’s decision to take away part of his compensation. (Exhibit 1).
The reduction was to take place immediately. The veteran was provided appeal rights.
The letter says the basis of taking away the IU rating was that he had been removed
from the “possible work environment.” This letter followed a VA Rating Decision dated
December 19, 1980, which stated, “Veteran has been imprisoned for life for slaying his
wife. This happened in 1979 with the sentencing occurring apparently i n early
November 1979. Per M21-24,07, the Board has determined that veteran is not entitled
to Code 18 in view of his removal from the work possible environment.” (Exhibit 6).
The veteran was never provided prior notice that this action was going to be
taking place, nor an opportunity to comment on the action before it was finalized.
On or about January 14, 1981, the veteran filed a notice of disagreement with
this action of the Regional Office. He also asserted a claim for PTSD. On February 11,
1981, the Regional Office issued a Statement of the Case (Exhibit 7), once again
basing the decision on the “removal from work possible environment” theory. On July
29, 1981, the veteran sent the Regional Office the reasons why he should not have
been considered removed from the work possible environment (Exhibit 8, page 1). A
handwritten note on this document indicated that the VA accepted it as a 1-9 (VA Form
1-9, substantive appeal). On August 12, 1981, a Veterans Service Officer also
submitted argument as to why the veteran should not lose his IU benefits on the theory
utilized by the VARO (Exhibit 8, page 2).
On January 5, 1982, the Board of Veterans Appeals considered the veteran’s
appeal, but characterized the claim as, “Entitlement to a total evaluation based on
individual unemployability due to service-connected disabilities.” It remanded the
veteran’s case. Without addressing the law applying to termination of a veteran’s IU
benefits, or even the fact that the veteran was appealing a termination, it treated the
case as an original claim for IU. It ordered that additional evidence be developed
relating to the PTSD claim that also was being appealed. (Exhibit 9).
The last sentence of the remand stated, “No action is required by the appellant
until he receives further notice.” The BVA then returned the case to the VARO with the
specific instruction that the issue in the case was, “Entitlement to a total evaluation
based on individual unemployability due to service-connected disabilities.” (Exhibit 10).
On October 29, 1982, the VARO issued another rating decision. It listed the
issues as, “Increased evaluation for SC left hip condition, individual unemployability, SC
for post traumatic stress disorder, increased evaluation for SC anxiety.” (Exhibit 11).
Approximately two weeks later (November 12, 1982), the VARO issued a
Supplemental Statement of the Case (SSOC), denying the veteran’s claim for PTSD
and IU. The reason given for denying the IU claim was that, “Evidence establishes that
the veteran is unemployable because of removal from the labor market and not
because service connected disabilities are so severe as to preclude employment even
though he is in a wheelchair.” (Exhibit 12). Thus the VARO continued to act pursuant to
its “removal from work possible environment” theory. No law regarding individual
unemployability, or the termination of benefits, was cited in the SSOC.
There is no record that either the October 29, 1982, rating decision, or the
November 12, 1982, SSOC were ever sent to the veteran or his service representative.
The SSOC does state that the BVA decision was sent to the veteran.
Notably, neither the special orthopedic, nor the special psychiatric, examinations
required in the 1982 BVA remand were accomplished by the VARO at any time during
its post-remand development of the case. There is no record that either were even
attempted. There is no indication in the file that the VARO ever attempted to comply
with the M-1 VA Health Care Adjudications Manual, Part I, Section VII, (Examination
and Treatment of Veterans Confined in or Paroled from Penal Institutions (Change 83,
August 2, 1965))(Exhibit 13). The VARO was aware of this policy, because a copy of it
is contained in the veteran’s C - file.
There is a March 9, 1983, VARO document that states that the prison
volunteered to provide orthopedic and psychiatric records to the VA on the veteran .
The same exhibit goes on to make an amazing statement to the RB (rating board)
saying, “Per Mr. Chamberlain - when reports are received from prison - rate, SSOC or
whatever & re-certify to BVA on that evidence.” (Exhibit 13).
A deferred rating decision dated March 25, 1983, acknowledged that the veteran
had provided a PhD psychologist’s diagnosis of PTSD, but denied the veteran’s claim
for that condition because (of all things) there was no definitive diagnosis by a clinical
psychiatrist to corroborate. It stated that the evidence warranted no change in the
denial of total evaluation due to individual unemployability (Exhibit 14). On March 29,
1983, the VARO issued an SSOC, reiterating the deferred rating decision (Exhibit 15).
On May 9, 1983, the veteran’s service representative wrote, pointing out that the
VA had failed to follow the remand instruction to GET a psychiatric evaluation, and
arguing that no rating could be issued without it (Exhibit 15). On June 7, 1983, the
National American Legion representative once again pointed out that the veteran had
not received a psychiatric examination as had been required for PTSD.
On October 4, 1983, the BVA prepared a letter, first repeating language from a
hostile, unsolicited letter which the VA had received from a doctor in 1979. The BVA
letter also noted, without comment, a recent diagnosis of PTSD. The BVA sent this
letter, along with the claims file to a BVA doctor, asking for a “correct diagnoses of the
appellant's psychiatric disorders, whether he has a true posttraumatic stress disorder,
and what the primary psychiatric diagnosis is currently.” (Exhibit 16).
On October 21, 1983, the doctor wrote back to the BVA. Based on the records
review, the doctor stated that the veteran had NO psychiatric diagnosis. This letter did
not discuss the two psychological diagnoses in the file, nor did it discuss the fact that
the veteran current was rated 10% for anxiety based on a medical discharge for
dissociative reaction. (Exhibit 17). The veteran’s representative objected to a diagnosis
based only upon a records review (Exhibit 18).
On January 17, 1984, the BVA issued its second decision on the veteran’s claim
for, among other things, “Entitlement to a total evaluation based on individual
unemployability due to service-connected disabilities.” It characterizes the veteran’s
position as, “It is contended by and on behalf of the veteran that the disabling
manifestations of his service-connected disabilities have rendered him unable to
perform a substantially gainful occupation.”
On page 8 of this BVA decision, for the first time, one finds a tangential
reference to the VA regulations on the requirements for termination of benefits. “In
reducing a rating of 100 percent service-connected disability based on individual
unemployability, caution must be exercised in such a determination that actual
employability is established by clear and convincing evidence. (38 C.F.R. 3.314 ©). It
then made findings that:
3. The appellant has been reported as capable of tutoring and manual labor jobs
that can be accomplished from a wheelchair; in other words, he has been shown
to be clearly and convincingly able to work.
4. It has not been demonstrated that service-connected disabilities are
productive of sufficient impairment so as to render the veteran unable to perform
a substantially gainful occupation.
Based on these findings, the BVA decision was:
3. Restoration of the total evaluation based on individual unemployability due to
service-connected disabilities is not warranted. (38 U.S.C. 355; 38 C.F.R. 3.321,
3.340, 3.341, 3.343©, Part 4, 4.16).
In arriving at its decision, the BVA failed, neglected or refused to discuss
regulatory required findings necessary before a withdrawal of benefits were to finalized.
Specifically, the BVA failed to make a finding based on an examination showing
material improvement in physical or mental condition. The version of VA regulation 38
C.F.R. § 3.343(a) in effect at the time provided that total disability ratings were not to be
reduced or discontinued, in the absence of clear error, unless there was an examination
showing material improvement in physical or mental condition. The decision based on
that examination should have been whether, upon consideration of all the facts and
records, the veteran had attained improvement under the ordinary conditions of life, i.e.,
while working or actively seeking work or whether the symptoms have been brought
under control by prolonged rest, or by following a regimen which precludes work. If the
latter, reduction from total disability ratings should not have been considered pending a
reexamination after a period of employment (3 to 6 months). (Exhibit 19).
None of this was considered or discussed in the 1984 BVA decision. Instead,
the veteran’s case was treated much as a new claim for IU. Although the BVA decision
acknowledged that the VA carried the burden of proof of showing clear and convincing
evidence in its decision, it totally fails to discuss what it was that had to be shown.
There is no examination showing improvement in the Veteran’s case, nor any mention
of improvement. As noted above, what they had the duty to show was that there had
been improvement in the veteran’s condition since he had been previously determined
unemployable. A review of the BVA’s finding of facts reveals no mention of
improvement. It deals entirely with his current condition. The discussion, and the facts
of the case, are bereft of any “examination showing material improvement in physical or
mental condition.”
Even if the 1984 BVA decision had correctly applied the law regarding withdrawal
of benefits, there is still the monumental problem that the veteran had NEVER been
provided the necessary due process notification and opportunity to be heard on the
subject. All the veteran had ever been told regarding the withdrawal of his benefits was
that:
a.) It was being done based on the “work environment” theory, as opposed to a
finding of material improvement in his condition based on examination showing
same, and
b.) The withdrawal was a fait accompli, for which the VA was not prepared to
consider argument and evidence.
Contrary to the law and regulations, he was never provided an explanation of the law
1 Although the veteran does not have access to the version of this Manual provision
which existed in 1981 through 1984, it must be assumed that the language was similar to that
discussed above.
under which his benefits were being withdrawn. He was not given 60 days, or any
days, within which to respond. He was misled as to the law that would eventually be
applied to his appeal. And he was instructed by the BVA that, “No action is required by
the appellant until he receives further notice.” (1982 BVA decision). The only notice he
ever received after that was a request that he fill out a work history form. The VA
neither wanted, nor was prepared to consider any due process argument or evidence
on the issue.
Quite frankly, it is apparent that, after it had withdrawn the IU benefit, it never
regarded the issue on appeal as a question of the propriety of the withdrawal. By all
indications, from the date of the withdrawal forward, the veteran’s responses and
arguments were treated as a new claim for IU.
Not having further avenue of appeal, the veteran’s case was over.

ARGUMENTS
It is the veteran’s position that the elimination of the rating for individual
unemployability was contrary to the law and that the IU rating should be restored,
effective March 1, 1981. There are several reasons for this position. They are:
THE REGULATION WHICH THE VA DEPENDED UPON WAS CONTRARY TO
ESTABLISHED LAW.
Prior to the 1984 BVA decision in his case, the VA had relied on the provisions of
the VA Adjudication Manual, M21-24,07 (sic) to relieve him of his IU rating.
Presumably, this is a reference to the Veterans Benefits Administration Adjudication
Possible Environment.’ " That opinion determined that nothing in the legislative history
of 38 U.S.C. § 5313 suggests that Congress intended that an extant IU rating be
reduced upon a veteran's incarceration for a felony conviction. The theory of loss of IU
benefits based solely on incarceration was a fiction developed by the agency contrary
to even its own regulations.
The General Counsel opinion noted that to the extent that manual provisions
may be interpreted as imposing requirements not in the statute or regulations that are
unfavorable to a claimant, those additional requirements may not be applied against the
claimant, citing Cohen v. Brown, 10 Vet. App. 128 (Vet. App. Mar. 7, 1997).
Accordingly, to the extent that these manual provisions were interpreted as requiring
discontinuation of an IU rating on the basis that a veteran is not in a "work possible
environment", the manual provisions were improperly applied against the veteran.
The VA never had the statutory right to withdraw IU benefits from the veteran on
the basis that it did, i.e., his incarceration. The veteran is entitled to reinstatement of
his IU benefits, and payment of all IU benefits previously withheld.

DENIAL OF DUE PROCESS AND FAILURE TO COMPLY WITH 38 C.F.R. § 3.105.
Even if it were determined that the VA had not relied upon an illegal manual
provision to withdrawn the veteran’s IU benefits, the process by which it withdrew them
was constitutionally infirm, rendering the resultant deprivation of benefits void.
There is, and was at the time, ample authority stating that if the VA intends to
withdraw established benefits from a veteran, it has the obligation to honor his due
process rights to be heard on the subject. For instance, the provisions of the version of
38 C.F.R. § 3.343© in effect at the time, regarding termination of total disability ratings,
as applied to IU ratings, states that the provisions of 38 C.F.R. § 3.105 are for
application. 38 CFR § 3.105(e) covers reduction in evaluations in compensation cases.
It reads:
Where the reduction in evaluation of a service-connected disability or
employability status is considered warranted and the lower evaluation would
result in a reduction or discontinuance of compensation payments currently
being made, a rating proposing the reduction or discontinuance will be prepared
setting forth all material facts and reasons. The beneficiary will be notified at his
or her latest address of record of the contemplated action and furnished detailed
reasons therefor, and will be given 60 days for the presentation of additional
evidence to show that compensation payments should be continued at their
present level. Unless otherwise provided in paragraph (i) of this section, if
additional evidence is not received within that period, final rating action will be
taken and the award will be reduced or discontinued effective the last day of the
month in which a 60-day period from the date of notice to the beneficiary of the
final rating action expires. (Authority: 38 U.S.C. 5112(b)(6))
Of course nothing of the kind ever occurred in this veteran’s case. The first
notification that he ever received that his benefits were going to be reduced was the
letter of January 5, 1981. (Exhibit 1). That letter gave him no options other than appeal,
which he did. It did not cite the law upon which it purported to act. It did not propose
anything. It did not give him any opportunity for the presentation of additional evidence.
Since it didn’t inform him of the (il)legal basis for the action, there was no way in which
he could have known how to respond.
The M21-1 Manual itself sets out details on complying with the due process
issues. Part Iv - Authorization Procedures, Chapter 9 - Due Process, Subchapter 1 -
Notification, 9.02 Pre-termination/reduction Notice—general, states:
Requirement of Notice. A beneficiary has the right to be informed of a proposed
adverse action so that he or she can offer evidence or argument to show why the
proposed adverse action should not be taken. Therefore, unless authorized by
paragraph 9.05 or 9.06, do not terminate, suspend or reduce benefits or take any
adverse action without first sending the beneficiary a pre-termination/reduction
notice. This rule applies to all benefits.

9.03 PRE-TERMINATION/REDUCTION NOTICE-SPECIFIC REQUIREMENTS
a. Time Limits
(1) Send the beneficiary advance written notice of a proposed adverse action.
Continue payments for at least 60 days after the date of notification to allow time
for the beneficiary to submit evidence showing that the proposed action should
not be taken.
(2) Unless specifically requested by the beneficiary, do not implement the
proposed adverse action until the latest of the following events occurs:
(a) The 60-day period expires.
(b) Any evidence submitted by the beneficiary during the 60-day period is
reviewed
© If VA receives a request from the beneficiary for a personal hearing within 30
days after the date of the pre-termination/reduction notice, a final decision is
reached on the evidence developed through the hearing or the claimant fails
(without good cause) to appear for the scheduled hearing. See paragraph
9.10a.
NOTE: If evidence submitted establishes that the adverse action should
not be taken, immediately inform the beneficiary.
b. Notification. Every pre-termination/reduction notice must include the following
elements.
(1) Statement of Proposed Decision. State the proposed action fully and clearly.
(2) Statement of Proposed Effective Date. Determine the effective date under
the provisions of 38 CFR 3.500 through 3.503. The requirement that payments
be continued through the 60-day pre-termination/reduction notice does not alter
this date. Inform the beneficiary that he or she may minimize any potential
overpayment by requesting that the award be adjusted immediately and that if an
overpayment is, in fact, created, he or she will be responsible for repayment.
Advise the beneficiary that, if the proposed adverse action is affirmed, he or she
must repay any overpayment that results from the continuation of payments.
(3) Basis for Proposed Decision. State the fact and reasons for the proposed
action. The facts should include a statement of the evidence being considered.
Include a brief statement of any calculations used to arrive at the proposed rate
of payment. Tailor the language used in each notice to the facts of the case.
(4) Right to Present Evidence, Request a Personal Hearing and Have
Representation. Every pre-termination/reduction notice must inform the
beneficiary of these three basic rights.
(5) Required Language. Exhibit A of this chapter provides language which must
be included in each pre-termination/reduction notice. VA Form 21-0506 may
also be used for this purpose, but it does not contain language about minimizing
an overpayment.
* * * *
Subchapter II. Reductions, Paragraph 9.24, establishes procedures in the case
of incarcerated veterans, and provides that:
a. Unofficial Notice Received. If an informal notice is received stating that the
veteran is incarcerated, establish controls (paragraph 9.08) and initiate
development for completion of a VA Form 21-4193, "Notice to Department of
Veterans Affairs of Veterans or Beneficiaries Incarcerated in Penal Institution."
Send the beneficiary a predetermination notice based on the provisions of
paragraph 25.04 only after official verification of incarceration is received.
b. Official Notice Received. When official notice is received that the veteran is
incarcerated, most often from a completed VA Form 21-4193, "Notice to DVA of
Beneficiary Incarcerated In Penal Institution," begin the due process provisions
as outlined in 9.03 of this chapter. Establish end product 600 and control for 60
days per 9.08 of this chapter. Final action is based on paragraph 25.04. Note
that both the EP 290 and EP 600 continue until final action is taken.
* * * *
Subchapter II, Imprisonment, Paragraph 25.04 Imprisonment in Penal
Institutions, provides in section ©(6): Notice of Discontinuance or Reduction to
Payee. A claimant is entitled to due process before reduction or termination of
benefits. Cite the applicable statutory authority (38 U.S.C. 1505 or 5313) in the
predetermination notice. Include information about the dependent's rights to an
apportionment and other information as applicable. If the address of the
dependents is available, develop for an apportionment with them at the same
time the payee is notified. Inform the payee VA may resume payments effective
the date of release from prison if notice of release is received within 1 year of
that date. If notice is not received within 1 year of the release date, VA may only
pay from the date the notice is received ((38 CFR 3.665 (i) and 3.666 ©).
Nothing of the kind ever happened to the veteran in this case. Even if the
provisions cited above may have been written subsequent to the date that the veteran’s
IU benefits were withdrawn, they are illustrative of the duty to meet due process
requirements. It certainly cannot be argued that Due Process is a concept more recent
that the facts of this case since they are derived from the 5th Amendment to the US
Constitution. The requirement to give due process has always existed. The citations
above give clear instructions on how those duties can be successfully carried out.
Both the Federal Circuit's and the Veterans Court's case law require compliance
with fair process. See Austin v. Brown, 6 Vet. App. 547, 551 (1994); Thurber v.
Brown, 5 Vet. App. 119 (1993) ("entire thrust of the VA's nonadversarial claims system
is predicated upon a structure which provides for notice and an opportunity to be heard
at virtually every step in the process"); Sutton v. Brown, 9 Vet. App. 553, 566 (1996)
(discussing and applying VA procedural protections and remanding for "Board to
consider and discuss . . . whether the veteran had been given adequate notice of the
need to present argument and further evidence on the merits of his claim and an
adequate opportunity to appear at a hearing"); Archbold v. Brown, 9 Vet. App. 124,
129 (1996) (fundamental right to receive appellate rights and Statement of the Case);
Curry v. Brown, 7 Vet. App. 59, 66-67 (1994) (discussing and applying VA fair process
principles and announcing fair process rules); Bernard v. Brown, 4 Vet. App. 384,
392-94 (1993) (holding that VA claimants must be afforded "full benefits of . . .
procedural safeguards" afforded by statutory and regulatory provisions establishing
"extensive procedural requirements to ensure a claimant's rights to full and fair
assistance and adjudication in the VA claims adjudication process").
Even assuming that the basis of the VA’s withdrawal were NOT the illegal “work
possible environment” theory, and was some other more legally palatable theory, it
remains clear that the due process provisions of the Constitution were not applied in the
withdrawal of IU benefits in this case.

ADDITIONAL ERRORS OF RECORD
In addition to the critical errors listed above, the veteran notes numerous other
errors in the processing of his case leading up to the challenged 1984 BVA decision.
They are:
1. The January 1982 BVA decision specifically discouraged the veteran from
making any argument relating to either the work possible environment issue, or the
termination issue. This discouragement was critical in view of the VARO’s failure to
seek the veteran’s response to it’s subsequent rating decision and SSOC.
2. The rating decision of October 1982, and Nov 1982 supplemental statement of
the case were never provided to the veteran.
3. The VARO never provided the veteran the special medical evaluations that he
was entitled to pursuant to the 1982 BVA remand. It failed to make an effort to provide
these examinations, and it failed to follow VA authority relating to trying to get these
examinations. Exhibit 13 instructs the VARO to utilize fee based physicians if VA
physicians were not available. A remand by the Board confers on an appellant the right
to compliance with the terms of the remand order and imposes on the Secretary a
concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet.
App. 268, 271 (1998).
4. The VARO never provided the veteran an opportunity to respond to the post
remand Rating Decision or SSOC, as was required in the 1982 BVA remand ("After the
appellant has been afforded an 'opportunity to respond, the claims folder should be
returned to this Board for appellate consideration, if in order.")
5. The BVA sought in independent medical opinion in lieu of a medical
examination. A medical opinion, based on records, is not an examination and cannot
substitute for one.
6. The letter from the BVA to the IME doctor was impermissibly tainted. A letter
from the Board requesting an IMO must "fully and accurately reflect[ ] the disability
picture, including both objectively demonstrated disabilities and subjectively claimed
pain or other disability." Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994). "If the
engagement letter fails to set forth all of the claimant's impairments, both objective and
subjective, or fails to set forth any other relevant factual detail, such as the time period
during which symptomatology manifested itself, the [independent medical expert]
cannot render an opinion which is supported by a sufficient prior review of and plausible
basis in the record." Id. See 38 U.S.C. § 7109 (a); 38 C.F.R. § 20.901(d) .
7. The IME was inadequate. It failed to address the TWO diagnoses of PTSD in
the claims file, or that fact that the veteran had been discharged with a medical
diagnosis of dissociative disorder, and currently was receiving a 10% VA disability
rating for "anxiety." The IME found NO psychiatric diagnoses without consideration or
discussion. The IME concurred with the diagnosis of a prison physician whose
examination DID NOT include a review of the C file.

REQUEST FOR RELIEF
Under 38 C.F.R. §§ 20.1000, 20.1001 (2002), the veteran may seek
reconsideration at any time. Reconsideration may be ordered "[u]pon allegation of
obvious error of fact or law." Veteran contends that there were two obvious errors of
law in the 1984 BVA decision on the issue of withdrawal of his IU benefits. The first
was that the withdrawal was made on the basis of an illegal policy contained in the
M21-1 Manual, not justified by either regulation or Federal statute. This error was
confirmed by the precedential opinion of the General Counsel 13-97.
The second error of law was even more clear. In withdrawing the veteran’s IU
benefits, the VA failed, neglected or refused to notify the veteran of the basis of its
actions pursuant to regulatory authority existing at the time, or give him an opportunity
to consider the withdrawal action and respond to it, as required by the Due Process
clause of the United States Constitution. Rather than providing notice of intent to
terminate due to improved condition, as required in 38 CFR § 3.343, the VA at first told
the veteran that it was withdrawing his IU benefits pursuant to the now discredited “work
environment” theory. It continued telling the veteran the withdrawal was based on this
theory up until the date of the 1984 BVA decision. At that time, the basis of the
decision changed to a factual determination that the veteran was currently capable of
employment.
Thus the VA both failed to notify the veteran of the proper theory of
discontinuance of IU benefits because it never used a proper theory. Additionally it
failed to give him the due process opportunity to appear and be heard as was required
by its own regulations at the time.
This letter should also be considered as a claim that the 1984 BVA decision
referred to above contained clear and unmistakable error. The statute authorizing
BVA CUE, the "Revision of Veterans' Benefits Decisions Based on Clear and
Unmistakable Error Act," is found at Pub. L. No. 105-111, 111 Stat. 2271 (November
21, 1997) (codified at 38 U.S.C.S. §§ 5109A and 7111). The BVA regulations providing
procedures for BVA CUE are found at 38 C.F.R. §§ 20.1400-20.1411 (2002).
It cannot be contended that the errors committed by the BVA in this case were
harmless. Loss of IU benefits without benefit of due process are hardly harmless. The
veteran’s compensation dropped nearly in half. It should be pointed out at this point
that this veteran is not subject to the law reducing the benefits of incarcerated veterans
to the 10% rate. Both his crime, and the award of IU benefits took place before
October 25, 1980. See 38 USCS § 5313(d) [Limitation on payment of compensation
and dependency and indemnity compensation to persons incarcerated for conviction of
a felony]
(d) The provisions of subsection (a) of this section shall apply (1) with respect to
any period of incarceration of a person for conviction of a felony committed after
October 7, 1980, and (2) with respect to any period of incarceration on or after
October 1, 1980, for conviction of a felony of a person who on October 1, 1980,
is incarcerated for conviction of such felony and with respect to whom the action
granting an award of compensation or dependency and indemnity compensation
is taken on or after such date.
The record certainly contains no evidence that the veteran’s condition had
improved between the effective date of his IU rating (Nov. 13, 1972. (Exhibit 4)), and
either the date the benefit was actually discontinued (Jan 5, 1981) or the date of the
challenged BVA decision in January 1984. In fact the records document a continued
worsening of the veteran’s left hip and leg condition, and his mental condition until he
eventually had the leg amputated. Thus, the usual burden in CUE cases, where the
veteran must demonstrate that, absent the error, he would have prevailed, is
considerably simplified. Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (holding that if it is
shown that a specific error was made, "persuasive reasons must be given as to why the
result would have been manifestly different but for the alleged error. It must be
remembered that there is a presumption of validity to otherwise final decisions, and that
where such decisions are collaterally attacked . . ., the presumption is even stronger.")
In this case the otherwise final decision was that the veteran was entitled to
100% based on IU. It would only be speculation to suggest that the veteran would
have been reduced to a lower rate, if he had been accorded due process. A review of
the record, however, seals the question. There is not a scintilla of evidence in the file
suggesting that the veteran’s physical condition, or employability had improved between
1972 and 1984. In fact there is no evidence even comparing the two situations.
It would take speculation to suggest that, if evidence was adduced relative to the
veteran’s condition on the two dates, it would have been adequate to revise the
otherwise final decision to grant the veteran IU. There is nothing in the record to
suggest this. Thus, it is clear that the status quo, in which the veteran was entitled to
100% disability based on IU was and is manifestly different from the speculative
contention that he would have been reduced if the terms of 38 CFR § 3.343 had been
observed.
Thank you for your immediate attention to this injustice.
Very truly yours,
Attorney at law

#15 tssnave

 
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Posted 07 August 2009 - 12:04 PM

Allan,

Thanks for the reply. Your posts actually line up with the issues surrounding my confusion on requesting a Reconsideration at the VARO level.

The reg you cited indicates that a Reconsideration is a BVA level process, not a VARO process.

Also, the court case you cited was for a Reconsideration based on a CUE.

I am looking for the M21-1MR citation that covers Reconsiderations at the VARO level. If a Reconsideration is something that the VARO is called upon to do (and not just route it to the BVA) then it should be in their adjudication manual.

Please post the citation for a local VARO Reconsideration.

Thanks!
TS Snave

#16 allan

 
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Posted 07 August 2009 - 03:39 PM

This may be what your looking for at the VARO level.
But i'll keep looking if it's not.
Allan
************************************************



§42.38 Reconsideration of initial decision.

(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the mailing in the absence of contrary proof.

(b) Every motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. The motion shall be accompanied by a supporting brief.

© Responses to the motions shall be allowed only upon request of the ALJ.

(d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.

(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.

(f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the Secretary and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the Secretary in accordance with §42.39 of this part.

(g) If the ALJ issues a revised initial decision that decision shall constitute the final decision of the Secretary and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the Secretary in accordance with §42.39 of this part.


http://www.warms.vba...RT42/S42_38.DOC

#17 sharon

 
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Posted 07 August 2009 - 04:18 PM

http://law.justia.com/us/cfr/title38/38-1.0.1.1.4.2.67.171.html

(h) Difference of opinion3.105). (1) As to decisions not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

#18 tssnave

 
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Posted 08 August 2009 - 11:32 AM

Sharon - I sent you a PM through your hadit email and haven't heard back from you - did you get it?

Allan,

No, this isn't what I'm looking for since this reconsideration reg requires a 20 day response time and it pertains only to initial decisions (not a decision that was on appeal).

I have read posts on hadit advising vets to submit a reconsideration to the VARO at anytime before the 1 year mark (and if they don't get a new Decision prior to the 1 year mark to get their NOD submitted) but I have not been able to find the process covered in the M21-1MR.

If you can find a citation for Reconsideration at the VARO level, I'd be interested in reviewing it. One thing I learned during my claim was you had to know the regs as well or better than the VARO because ultimately, that's the only thing you can try to hold them to. That's why I've always been uncomfortable with the Reconsideration route at the VARO leve - because I could never find the supporting process in the manual.

Thanks for your help,
TS Snave

#19 allan

 
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Posted 08 August 2009 - 01:23 PM

[That's why I've always been uncomfortable with the Reconsideration route at the VARO leve - because I could never find the supporting process in the manual.]

This is what i've come up agaisnt also.
I'm finding very little on reconsideration. I did come accross it mentioned under DRO review. Other than what i've posted, theres nothing.
NOD maybe the best.
In the past, i've used reconsideration at the VARO level. But mostly NOD with RO & BVA decisions.
If it's for appeal, than NOD for BVA should work for VARO's as well. It has for me over the last decade.

#20 allan

 
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Posted 08 August 2009 - 01:44 PM

Reconsideration under title 38 United States Codes



http://uscode.house....fastweb...

http://uscode.house....fastweb...

http://uscode.house....fastweb...

http://uscode.house....fastweb...

#21 allan

 
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Posted 08 August 2009 - 02:00 PM

§ 3.2600 Review of benefit claims decisions.
http://ecfr.gpoacces...-...1.3&idno=38

#22 john999

 
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Posted 08 August 2009 - 03:25 PM

I really don't think that there is any shortcut to getting a good outcome on a VA claim. Reconsideration, Nod, DRO, BVA ....all take time. You can win or lose every step of the way. Ask Berta!

#23 tssnave

 
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Posted 10 August 2009 - 08:45 AM

John - Amen!!

Allan - Thanks for the posts. The other reason that Reconsiderations at the VARO level bothered me is that you still have to send in your appeal within the 1 year time frame and let's face it, we are talking about disability claims here so we are all walking wounded in one way or another and who knows how you will be doing right before the 1 year appeal period ends? It always made more sense to me to just get it done as an appeal up front. So far as I know, a Reconsideration doesn't go to the front of the line in front of an appeal so I don't see the overall value. However, having said that, I have read on hadit where it has been successful for some vets which is why I've tried to find it in the M21-1MR manual to see what process we can expect the VA to follow.

Thanks!
TS

#24 allan

 
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Posted 10 August 2009 - 12:28 PM

When I first filed my claim it was denied right away.
I filed an NOD & requested a hearing. After the hearing I won a partial award of 30% & pension.
It seems they almost deny everyone the first time, so atleast folks should send in their NOD's to rebut the denials before appealing to the BVA.
As soon as you appeal to the BVA, your claim will just get passed back to the RO level anyway. It's better to try to get the RO level to work out their error's, before it goes to the BVA.
Everyone should read their denials carefully. Most are full of errors to outright lies from what i've experienced. Some can get worked out by requesting a local hearing at the VARO.
When you've exhausted your NOD's to the VARO, than file a form 9 and appeal to the BVA if you need to.
If you have to appeal to the BVA, it's a long, long road to travel. First it gets burried in the caverns of the AMC for years, before the BVA makes a final.

#25 Pete53

 
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Posted 10 August 2009 - 05:28 PM

I believe with all my heart that every time you have ameeting concerning your claim you are helping your self over the long haul.

As our star Lawyer Alex used to say take every bite of the apple that you can.

Even if you lose at DRO and it takes a few months its a better Statement of the Case and a map on how to win your claim. That is what is so obvious the VA not you VSO tells you how to win your claim.

#26 retiredat44

 
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Posted 10 October 2010 - 03:45 AM

When I first filed my claim it was denied right away.
I filed an NOD & requested a hearing. After the hearing I won a partial award of 30% & pension.
It seems they almost deny everyone the first time, so atleast folks should send in their NOD's to rebut the denials before appealing to the BVA.
As soon as you appeal to the BVA, your claim will just get passed back to the RO level anyway. It's better to try to get the RO level to work out their error's, before it goes to the BVA.
Everyone should read their denials carefully. Most are full of errors to outright lies from what i've experienced. Some can get worked out by requesting a local hearing at the VARO.
When you've exhausted your NOD's to the VARO, than file a form 9 and appeal to the BVA if you need to.
If you have to appeal to the BVA, it's a long, long road to travel. First it gets burried in the caverns of the AMC for years, before the BVA makes a final.


I agree, the lie and twist facts, and i am not just sayin it, I have absolute proof... how they can get away with the lies is beyond me.. they should al be fired.. and their hiring practices for the stupid morons should al be re-written..

I had to take my NOD's and clearly spell out my evidence so even a 3rd grader could read the evidence... they have al0l been consolidated into one DRO hearing request.. I will love to confront these liars in person...

I have had a DRO request in since around September 2009. But now the dro has been expanded to include one more NOD I just had denied..
My IMO is also listed along with my evidence to make sure they understand that there is an IMO (a frakkin huge IMO).

Sorry, if I ranted, but it is so outrageous and disgusting what the people get away with in the way they deny Veterans with blantant lies..

#27 fanaticbooks

 
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Posted 10 October 2010 - 08:51 AM

Talking with a VSO Thursday when he spoke to a meeting, he mentioned that "reconsideration" is not a word to be used for this aspect.

He said the correct term is "review of rating."

This is the person who negotiates with the VA for the American Legion veteran claims for all of Oregon.

Maybe that will help in researching.

#28 blanco63

 
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Posted 10 October 2010 - 10:51 PM

It's a request for reconsideration. I do not have a VSO. I do not need one. I do not want one. I am he. I did 3 requests for reconsiderations in 2.5 years. I submitted a letter from my doctor(ripping apart their same anti-veteran PA's C and P denying me reports) with each one of them and got an increase each time, 0 to 10 to 30 to 50%. As I have always stated, recons work, well, they have for me. Recons = Quick Cash. Believe me or not. Doesn't matter to me. I am doing one now telling the rater to review my claim and my psych's new letter and give me only 30% before I send it to the DRO and demand 70%. Bet you I get 30% before December. This is how you(I)get positive results. I'll write again in Dec.

#29 retiredat44

 
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Posted 11 October 2010 - 12:15 AM

I have found out a DRO through the San Diego office takes longer than 1 year, probably around 16 to 20 months..

#30 allan

 
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Posted 11 October 2010 - 01:26 AM

My DRO review took four yrs of needless delay.

You can file a NOD and have it go through normal VARO review instead of going through a DRO.

I believe after you file for Reconsideration or Notice of Disagreement, (NOD) than the process that follows is, review of previous rating.

There is a time line to file for Reconsideration or Notice of Disagreement. I would check very closely through the CFR's, USC's and M-Manuals concerning the legal filing of, "Review of Rating". If you file for the wrong thing and your time runs out to file for a NOD, you may end up SOL.
Other than the process the VA raters do after you file a written NOD, I've never heard of "Review of Rating" in the codes.

However, Reconsideration or Notice of Disagreement is there.

http://ecfr.gpoacces....4.81.3&idno=38
(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case.

Edited by allan, 11 October 2010 - 01:34 AM.