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Appeals Vs Reconsideration

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rakkwarrior

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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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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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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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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
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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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