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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
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    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

      Hi I've updated our HadIt.com Pass It On Cards. They are in a PDF format you can print them out cut them there are 12 to a page. If you have found HadIt.com helpful and would like to pass it on to other veterans this is an easy way to do it.I hope you find them helpful, feel free to leave a few anywhere veterans gather, veterans centers, veterans hospitals, public libraries, be creative. Please make sure though, that if you want to leave some at any business you ask permission first.Here you go http://www.hadit.com...it_on_cards.pdf
    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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Appeals Vs Reconsideration

22 posts in this topic

Posted

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.

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Posted

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.

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Posted

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.

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Posted

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.

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Posted

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.***

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Posted

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

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Posted

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))

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Posted

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

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Posted

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.

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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

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Posted

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.

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Posted

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.

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Posted

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Posted

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.

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Posted

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.

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Posted

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/vetapp10/files3/1026468.txt

Citation Nr: 1026468

Decision Date: 07/15/10 Archive Date: 07/28/10

DOCKET NO. 07-34 817A

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Posted

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.

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

http://www4.va.gov/vetapp10/files2/1012712.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.

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Posted

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.

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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.

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

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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.

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