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Appeals Vs Reconsideration


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21 replies to this topic

#1 rakkwarrior

 
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Posted 19 February 2011 - 12:24 AM

Often veterans become upset with a VA Rating Decision, see the appellate rights and opt for filing a Notice of Disagreement (NOD). This will typically invoke a long and arduous appeals process. Appeals within the VA system often last 2-6 years, not including BVA remands.

A much easier way to continiously prosecute claims is by filing for reconsideration/readjudication of a prior VA decision. Typically, claimants have one year from the date of notification of a VA decision to either file an appeal or request reconsideration of the prior decision with new and material evidence. This is evidence which has not previously been considered and may serve to overturn prior decisions.

If new and material evidence is received within the appellate period for any decision which has not become final the provisions of 38 C.F.R. 3.400(q) would be for application whereas the Court held, "VA must consider any new and material evidence received during the one-year appeal period following an RO decision as having been filed in connection with the claim which was pending at the beginning of the appeal period." See also Rice v. Shinseki, 22 Vet.App. 477 (2009).

Generally claimant's are unaware of the evidence required for a favorable decision, however, a proper VA Rating Decision (VARD) should provide adequate reasons and basis for the denial of any condition. Within a VARD there should be discussion of evidence considered in the service medical records, the evidence submitted, and findings of any VA examination to include rationale of the examiner as to why or why not a nexus opinion is given in regard to service connection.

Equally, the most common reason for a denial is not for lack of in-service treatment, or evidence of a current disability, but the medical opinion relating that condition to service.

Generally service connection requires (1) evidence of an in-service, injury, disease, or event, whic was caused, incurred or aggravated in the line of duty, (2) a current chronic or disabling condition, and (3) a competent medical opinion relating the two to service.

Of the claimant can overcome a VA medical opinion with a competent medical opinion, which is as equally thorough or greater in probative value than that of a VA examiner, then the claim should be reconsidered and granted. This can be accomplished by asking for reconsideration of the prior decision, and effective dates should be assigned accordingly. This technique can win cases in a much faster fashion than electing to file an appeal, which in the send will requires the same type of evidence for a claimant to prevail.

#2 Pete53

 
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Posted 19 February 2011 - 12:47 AM

Welcome to Hadit. In a perfect world the VA would follow its own rules. Like it or not if you don't ask specifically and show VA why the chances of winning in early stages are not so good.

#3 Berta

 
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Posted 19 February 2011 - 06:44 AM

I certainly agree that a reconsider might resolve a claims issues faster than a NOD.

But that depends on whether the VA will act on the request within the NOD time frame.

I feel everyone filing for Reconsideration should mark their calendar-as the year can slip by fast-to make sure the NOD is filed on time.

I filed for reconsideration and had to send them my NOD within days of the NOD year deadline as they had ignored the request.

Also if the VA made a CUE a veteran can ask them to CUE themselves during the appellate period.But that too still means the NOD clock is ticking.

New and material evidence that would warrant a reconsideration cannot be redundant or cumulative of what they already have.

That evidence could include anything they did not list as evidence on the SOC.

If they don't list it as evidence and opine on it in the SOC, to me it means they ignored it or lost it and it might be critical to the claim.

#4 COOL BREEZE

 
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Posted 19 February 2011 - 12:12 PM

I understand there is long back log-especially those claims for reconsideration. Do you have any insight as to the new length of time once a reconsideration claim is with the rating board what the new time frame is? It used to be up to 28 days. Thank you. And again, welcome to this forum.

#5 rakkwarrior

 
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Posted 19 February 2011 - 12:31 PM

Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160.

In my VARO appeals take 2 years for De Novo or Traditional Review, the latter of which is merely a review if the prior decision and is IMHO useless. Reopened claims take 6-9 months currently.

We coomunicate with our VA counterparts to gain an understanding of current workflow, and actively work to streamline our clients claims to be "Ready to Rate". We also use the FDC claim process to expedite new claims and claims for reconsideration with additional evidence.

***FDC claims will not work for issues which have become final and require N&ME to be considered formally reopened, this is due to VCAA notification requirements.***

#6 COOL BREEZE

 
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Posted 19 February 2011 - 01:40 PM

Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160.

In my VARO appeals take 2 years for De Novo or Traditional Review, the latter of which is merely a review if the prior decision and is IMHO useless. Reopened claims take 6-9 months currently.

We coomunicate with our VA counterparts to gain an understanding of current workflow, and actively work to streamline our clients claims to be "Ready to Rate". We also use the FDC claim process to expedite new claims and claims for reconsideration with additional evidence.

***FDC claims will not work for issues which have become final and require N&ME to be considered formally reopened, this is due to VCAA notification requirements.***


Re-opened claims-that would apply to clams re-opened for reconsideration? Mine was placed for reconsideration due to missed medical information. ( in AZ) From what I understand from your post I'll expect to get a decision within 6-9 months, not the normal up to 28 days that was previously the norm before the agent orange claims opened up. I had my reconsideration claim sent in October 2010. It went to the rating board in November. Does the 6-9 months commence from the date refiled, or the date once it hits the rating board. Thanks

#7 rakkwarrior

 
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Posted 19 February 2011 - 01:50 PM

If development is complete and the case is in Ratings then no it shouldn't be long, the effective date should reflect the date of the original claim, in most cases, otherwise the date the evidence supports the claim. (Ref 38 C.F.R. 3.400, 3.400(o)(2), and (q))

#8 COOL BREEZE

 
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Posted 21 February 2011 - 07:35 AM

Unfortunately it looks like these claims are on the slow track with all the new claims coming in. Estimates I have been given are from 6-12 months once a claim is with the rating board in Arizona

#9 rakkwarrior

 
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Posted 21 February 2011 - 03:13 PM

DELETED

Edited by rakkwarrior, 01 April 2011 - 07:11 PM.


#10 COOL BREEZE

 
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Posted 23 February 2011 - 12:18 AM

[quote name='rakkwarrior' timestamp='1298322823' post='236209']

COOL BREEZE:

Thank you for your service and leadership during your time as a Marine this might help establish a TDIU claim, and service an IR for the condition, that way if you got a 60% for the heart condition, you would be entitled to SMC "S" under Bradley v. Peake (2008). Here's what your doctor needs to respond to:

1. Whether or not the severity and current level of functioning the veteran experiences due to his PTSD results in Occupational and social impairment, with deficiencies in most areas:
b. due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.


2. Whether or not our client's service-connected PTSD in combination with residuals, head trauma and combat related injuries are of such severity so as to preclude his ability to obtain or maintain further gainful occupation.

3. Whether or not his conditions should be considered static and unlikely to improve.
Title 38 C.F.R. §§3.340, 3.341, 4.16(a)(2) and 4.18 provides a veteran may be considered as unemployable, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to non-service connected disability. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.

Kindly provide your medical opinion as to whether or not it is "within a reasonable degree of medical certainty" that his conditions as noted above, not in combination to non-service connected conditions are of such severity that renders him unable to obtain or maintain further gainful occupation.


Please note the requested opinion is to be utilized in supplementing the VA's Compensation and Pension evaluation in regard to etiology of the claimed conditions. There is no requirement for the opining doctor to appear at any conference, hearing, or other such procedure. The weight of the requested opinion will be carefully weight based on all other evidence of record.

Once you have provided your written opinion, please provide our client with a copy in accordance with HIPAA Public Law 104-191, and VHA Directive 2008-071. Please feel free to contact me at the above provided phone number with any questions you may have.

Sincerely,

NAME HERE



This is what I would provide to a doctor when acting as an NSO for my staff at DAV, this is a template I devised, and is not proprietary, or a "guarded secret". However each opinion is as only effective as the information furnished to the doctor, and/or the specific opinion requested. I think this should suffice to answer the questions the VA may need to address in deciding favorably on your claim, however it is the doctors substantive opinion, not this request which will be the determining factor.

Thanks for the warm welcome, I hope this helps and prints the way I composed it. There should be no weird paragraph breaks.

[/quote

]
Thank for the information. I am retired from the Navy with a current total 50%. Waiting for a 3 claims for re-consideration that is with the rating board since November. One of the claims missed medical evidence that would have given me the 60% vice 30% that was given last September for the cardilogy. I have 1 claim that is a NOD as they didn't given me AN increase for my pain in my neck even though the flex test would have given me a 30% for that rating as the rating board said a few incidents(whip lash accidents) contributed and had nothing to do with this issue even though the 1st rating board in 96 failed to note the helo accident and several other accidents that had medical reports stating neck pain ect. What A real mess! The next pain really increased in severity in the last few months that resulted in MRI, pain medicine given-this has nothing to do with a few whip lash car accidents 1o years ago. The rating board failed to note the ROM test from last summer, so I did A NOD
I am a member of the DAV in AZ. I have had terrible experiences with the 5 VSO I have gone through. I had one that wanted me do do 1 claim at a time for rec-consideration. I fired 4 , went with another one that never responds. So basically-I have to use this forum and do all the claims my self.
Your Assistance with this forum is greatly appreciated. I have several more new claims I would like to file. I saw in my C-file notes of other claims that I should have filed for. Notes of the Veteran spoke of chronic fatigue, bathroom issues, drowsiness and tiredness, but did not make it clear that he was seeking service connections.
How many different claims can you have going on? Is it best to wait for the reconsideration claim to be decided before I put the next batch in? And of course the NOD-that will probably be decided in another year even though I requested a defacto-local decision first. Thanks




#11 broncovet

 
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Posted 30 March 2011 - 02:41 PM

Rak
You stated:
"Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160. "


While I find your posts generally knowledgeable, this statement is in conflict with some other posters. (Possibly Berta) Before I would "bet my entire Retro (sometimes enough money to buy a home) that the VA interpreted it the same way", I think I would file the NOD before the year, just in case.
It has been suggested that we mark our calendar, (when filing a MFR) and send in the NOD before a year. While I do agree that is somewhat awkward or even contradictory, I also understand the stakes are very high.
If you have precedential case law to support your position, then feel free to post it.
I dont mean to sound like a doubting Thomas...on the other hand, I have been given bad advice before and I have paid the penalty and lost my home.
This is a pretty important issue, for me, because I think the odds of the VA resolving our MFR favorably within a year are slim..as they dont seem to get much done at all in a year, when you are talking appeals. A year is like a day to the VA. If you write in to the VA and complain, "Gee why is my appeal taking so long..its been a year".....they will laugh in your face and tell you to contact them again in 2015...that is when Shinseki promised to reduce the backlog.

Edited by broncovet, 30 March 2011 - 02:44 PM.


#12 carlie

 
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Posted 30 March 2011 - 03:36 PM


It has been suggested that we mark our calendar, (when filing a MFR) and send in the NOD before a year.

This is a pretty important issue, for me, because I think the odds of the VA resolving our MFR favorably within a year are slim..as they dont seem to get much done at all in a year, when you are talking appeals.


bronco,
What I am posting here now, is not a biggie but I have clarified (in response to your posts) several times now that,
if claim issues are at the VARO level - there is no such thing as a MFR (Motion for Reconsideration).

There are no motions made at the VARO level - it is simply called a Request for Reconsideration.

This needs to be clarified so newbies don't get led to believe that motions are filed at the VARO level,
as they are not.

#13 rakkwarrior

 
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Posted 30 March 2011 - 08:29 PM

DELETED

Edited by rakkwarrior, 01 April 2011 - 07:12 PM.


#14 justrluk

 
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Posted 31 March 2011 - 06:18 AM

Bronco, you said "Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160. While I find your posts generally knowledgeable, this statement is in conflict with some other posters. (Possibly Berta) Before I would "bet my entire Retro (sometimes enough money to buy a home) that the VA interpreted it the same way", I think I would file the NOD before the year, just in case":

Rice v. Shinseki (2009) spell it out. its the theory of continuous prosecution, simply stated if you never let the appellate period die, by reopening the claim it never becomes final. see Title 38 C.F.R. 3.160, in regard to 38.C.F.R. 3.156(b), it discusses evidence, well evidence can be a statement to reopen via VAF 21-4138 or medical evidence, or the like. If a claim is continuously pr0secuted the claim does not die, by virtue of not allowing the 1 year (60 days for ECA claims) to expire.

If the claim does not expire for failure to prosecute via reopening at the Rating Board or NOD, then the claim continues, effective dates are governed on the basis of type claim in accordant with 38 C.F.R. 3.400. In general, the date of claim or the date the evidence supports, whichever is later. In regard to claims for increased evaluations, it's the date it becomes factually ascertainable the increase is warranted.


This has been a great conversation thread to read through from top to bottom. I'm in the same boat as Berta: requested reconsideration (have the documents to prove it) and the request was ignored for a year. Within days of the one-year-period expiring, took a day off from work, drove several hours to the regional VARO, hand-delivered the NOD and then saw my VSO to go over my open issues. Now, I'm not sure which will be acted on: the reconsideration or the NOD? My VSO has been keeping an eye on it, but can only do so much.

Another question: if the VARO actually makes a decision based on the request for reconsideration, how would it show in eBenefits? As an administrative review or as action taken on one of the closed claims? Don't know if anyone can answer this (and realize eBenefits has been the subject of other threads) but I'm just trying to connect the dots.



#15 Berta

 
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Posted 31 March 2011 - 06:54 AM

This is the only area in which I differ with Rakk in. His expertise here has been a great valuable asset to us and I am grateful for everything he posts.And I read it over many times.

I will review Rice V Shinseki again to get the guist of his position.I could be wrong as to the NOD.

I based my advice here as to not letting the NOD one year time frame run out due to a BVA decision (which I posted here years ago and will try to find again.

The VA stated the veteran had filed a reconsideration request but had not filed a timely NOD and the claim was denied.

Apparently they either had not considered the reconsideration request at all or it was part of the denial.

The vet appealed to te BVA and had a NSO who also had filed a statement to the Board.
The NSO stated that although the veteran had filed only the reconsideration in the appealate one year NOD period and had NOT filed a NOD- the VSO himself had filed this type of statement with the VA:

'if the reconsideration request does not warrant an award please consider this as a formal Notice of Disagreement for this claimant."

This statement got the veteran a remand as the BVA agreed that the NOD had been filed timely (by the NSO POA and not the veteran) and the earliest effective date of the original claim was preserved by the NSOs actions.

I will sure read Rice very carefully today as maybe it has altered the one year NOD period if a request for reconsideration as been made.

But that BVA decision (the link is here somewhere) sure prompted me to file NOD at last minute on a reconsideration request I filed for my SMC CUE claim-pending since 2004 and supposed to be resolved in April by VA under Nehmer per their last letter.

#16 Berta

 
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Posted 31 March 2011 - 07:10 AM

After a brief electronic visit to the BVA
I still stand strongly on my position that a Request for Reconsideration cannot be accepted as a NOD:

(Rice was decided on May 6, 2009 and this BVA decision was made on July 15 2010 so the basis of Rice did not affect the BVA's position)

In Part:

“With the above criteria in mind, the Board finds that the
Veteran's requests for reconsideration cannot act as NODs to
their respective rating decisions because they do not "include
terms that can be reasonably construed as a desire for appellate
review." The Veteran, in his October 2006, April 2008 and
August 2008 submissions, specifically stated that he wanted the
RO to reconsider the rating decisions of October 2006, January
2008 and May 2008. Specifically, in his April 2008 request, the
Veteran plainly requested that the RO not process his request as
an NOD. He stated that he wanted a reconsideration based upon
new evidence. The Veteran expressed the same sentiment in his
August 2008 submission. In contrast, in the case of the issues
currently on appeal before the Board, the Veteran filed a notice
of disagreement in July 2006, specifically stating that he wanted
to file a notice of disagreement with the rating decision
currently under review.

The submissions discussed above plainly show that the Veteran has
actual knowledge of the differences between notices of
disagreement and requests for reconsideration. Therefore, the
Board finds that the record does not include any writing from the
Veteran or his attorney in the one year period following the
receipt of notice of the October 2006 or January 2008 rating
decisions involving disability ratings for depression and a left
leg disability, that could act as a NOD as to those issues.
38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309, 1314
(Fed. Cir. 2002). Accordingly, a remand by the Board is not
required. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999)”

http://www4.va.gov/v...es3/1026468.txt

Citation Nr: 1026468
Decision Date: 07/15/10 Archive Date: 07/28/10

DOCKET NO. 07-34 817A

#17 Berta

 
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Posted 31 March 2011 - 08:01 AM

to add-I just re read Rice V SHinseki-

Rice's NODs had been filed timely and that was not an issue in Rice.

He had however filed a Motion for Reconsideration with the BVA.

This type of BVA reconsideration is not comparable in any way at all with a Reconsideration Request at the VARO level.

Nothing has altered the regs requiring that a timely NOD must be filed with the AOJ RO within one year after a VARO denial.

Whether a recon request was filed or not.

#18 Berta

 
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Posted 31 March 2011 - 09:22 AM

Here is another Post-Rice V Shinseki BVA decision to support my postion:

http://www4.va.gov/v...es2/1012712.txt

In Part:

CONCLUSIONS OF LAW

1. The Veteran's March 1999 request for the RO to
reconsider the rating decision of January 1999 did not
constitute a timely notice of disagreement (38 U.S.C.A. §
7105(b)(1) (2009); 38 C.F.R. §§ 20.201, 20.300 (2009)) so
that decision was final. 38 C.F.R. §§ 20.302, 20.1103
(2009)."

I think the subject of NODs and Reconsideration requests should be gone over in the main forum again.

#19 rakkwarrior

 
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Posted 31 March 2011 - 03:07 PM

Rice's request in that instance, for reconsideration WAS NOT an NOD, it was a reopened claim...you cannot have it both ways...and his attorney (via flimsy argument) tried to have the Board consider issues which were not within their appellate jurisdiction, that the issue was not continuously prosecuted...i.e. a later NOD was not filed on the issues which were reconsidered, after the appellate period had become FINAL for FAILURE to prosecute.


Edited by rakkwarrior, 31 March 2011 - 03:13 PM.


#20 broncovet

 
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Posted 31 March 2011 - 04:09 PM

As Carlie has pointed out there is a difference between a MFR and a Request for Reconsideration, mainly on the level of appealate review.

The NOD is supposed to give the BVA juristdiction to review the RO decision. The Veteran has to do other things to perfect his appeal. Just one NOD wont do. He must then respond to the SOC and file an I 9, with the Ro's assistance.

But the Request for Reconsideration does not seem to accelerate the appeal level..it stays at the RO level, and the Vet submits new evidence. I dont think the RFR gives the BVA the authority to review..only the NOD does that.

I agree with Berta that the SAFEST way is to file a request for reconsideration, AND file a NOD before the year.
I also agree that RAK Warrior is very knowledgeable, and has posted helpful information. But I also know the VA is extremely UNFORGIVING about failure to file a NOD on time...no matter what.

I think there is a chance that both are right. In other words...when the Veteran files for reconsideration...the claim becomes "continiously prosecuted" as Rak said. But, I dont think this "tolls" the 1 year deadline to file a NOD. However, Henderson Shinseki may change that.
This supreme court case "revived" Equitable tolling, since cases before it seemed to have killed it. Equitable tolling seems to be the only instance when the 1 year appeal period is extended. Now, if the Veteran files for reconsideration...and the VA makes no decision on it for a year...the Veteran may be able to ask for "equitable tolling " the one year period...that is the VA's failure to act on the reconsideration request timely MAY "toll" the one year appeal period. Previously, before Henderson, the courts had ruled that the one year appeal period was jurisdictional, and the courts had no right to even entertain cases which were not timely appealed. Now, however, post Henderson, the Veteran may ask for equitable tolling.
For me, tho, I dont want to get into an arguing match..its easier to just file the NOD on time no matter what. JMHO.

#21 Pete53

 
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Posted 31 March 2011 - 04:15 PM

Never take chances with the VA. Never ever makes sure that you comply with everything they want or say that they need.

#22 Berta

 
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Posted 01 April 2011 - 10:09 AM

Thanks Pete- I think we kicked this topic around long enough.

I have one more citation for my position but it is page 917 of the 2010 Edition of the VBM by NVLSP and just reiterates
the point I made anyhow as to timely filing of a NOD whether a vet rep initiates a recon request or not.

They don't even mentioned a claimant filing this type of request.