When it comes to the current options for challenging a VA Ratings Decision, Veterans often send me emails asking what do they do..which option do
they choose? To begin answering that question, let me tell you a story. Every so often, my wife and I trade out our family chores. She pays the bills, I go grocery shopping….she goes to work, I sit around eating bon-bons all day. Just kidding…my wife is probably a harder worker than I am, and those of you that know me know that means something.
When I first went grocery shopping for the family, toothpaste was on the list. Have you seen the toothpaste section in the grocery store? There are over 352 different types. Seriously, the Wall Street Journal researched it back in 2011. There is toothpaste for tartar control, for sensitive teeth, for whitening teeth, flouride, no flouride, every flavor imaginable…I couldn’t even FIND our usual brand in all that mess of colorful labels and boxes, no less decide if our usual brand was the “right” one to buy. So many choices when it comes to a simple thing like toothpaste. Too many choices, really. To avoid having to suffer this dilemma again, we now order our toothpaste online. Screw the complexity. The toothpaste situation is a metaphor for VA Appeals.
- You can file a Request for Reconsideration – but since that process doesn’t really legally exist, it’s like using bleach as toothpaste.
- You can file a Notice of Disagreement (NOD) within one year and start the appeal to the BVA.
- You can file a claim to reopen, and add evidence as to the element that caused the VA to deny your claim.
- Or you can do nothing – throw the damn thing in the trash, grab another box of bon-bons from the freezer, and swear that the VA is the worst government Agency since the Department of Acid Rain was abolished.
If Congre$$ and the Big 6 (the VSOs that, even though stuck in the 1940s, run the legislative corral in Congre$$) have their way in 2017, you will be faced with a NEW and IMPROVED appeals path that looks like it was written by a drunk cow. Seriously, here’s a leaked picture of the new and improved confusion-fest that is the VA Appeals process the VSOs and VA wanted to implement to “improve” the BVA appeal process.
Unbelievable, right? It’s like the toothpaste scenario all over again. But, I digress. To answer the question at hand – which option should a Veteran choose when they receive an adverse VA Ratings Decision – here’s my vote. Do all of them. But do them in a very particular sequence.
Step 1: File a Notice of Disagreement (NOD): Do this first. Do this as soon as possible after you receive a VA Ratings Decision, and you will “jump the BVA Appeal line” in front of thousands of Veterans and get your appeal heard sooner.
The Notice of Disagreement is the most important document in this sequence, as from it are borne all manner of legal rights.
The VA will try to talk you into withdrawing your appeal if you agree to resolve one of the following other methods, but don’t fall for it.
Remind them that you cannot by law settle a VA claim, as that would be asking the government to pay less than it is obligated to pay by law.
Need help strengthening your argument in your NOD and making it more persuasive to VA Bureaucrats?
Check out my training video, “Get to the Point”. (Check out the other Training Videos available at the Veterans Law Blog while you are at it: How to File a VA Claim, How to Get AND USE a copy of your C-File, How to prove the 4 Pillars of a VA Service Connection claim)
Second Step: File a Claim to Reopen. Add the new evide
nce as to the denied elements of the claim.
Why would you file a claim to reopen after filing a NOD?Because if you lose the appeal you filed on the NOD, your claim to reopen is still open and pending – and if you win the claim to reopen based on New and Material Evidence submitted within 1 year of the VA Ratings Decision, you get the original effective date of your previously denied VA Claim.
Think of it this way.
Filing a Claim to Reopen is a hedge bet against the loss of your VA Notice of Disagreement.
Your second bite at the apple. Clear as mud?
Third Step: Ask the VA to Reconsider the Claim. Because why not?
Remember, this is NOT a real process.
There is no such thing as a Request to Reconsider a VA Ratings Decision – VSOs want you to believe that there is so you don’t file an appeal – as many of them “don’t work on appeals”.
If the VA gets a Request to Reconsider, do you know what they are required to do?
Nothing. Not a dingle dangle thing.
Why would you ask the VA to Reconsider the Claim if there is no such thing?
Why would you ask the VA to do something that they are not required to respond to ?
These are all questions that I don’t have answers for, but here’s the best that I can do.
So long as you have followed the first 2 steps and filed a NOD and a Claim to Reopen, what’s the harm?
Maybe they’ll do it.
While you’re at it, ask them to release all the secret files on the Kennedy Assassination – maybe they’ll do that, too.
Fourth Step. Go eat Bon-Bons on the Couch. Seriously…after all that work, you’ve earned a few bon-bons.
Or, better yet, go join Team Red White and Blue, get outside and enjoy the outdoors with your fellow Veterans.
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