asknod

Reconsiderations

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Good advice.  For VEterans who have "already" taken their VSO's advice to file a MFR, it may not be to late.  Simply file the NOD within a year, and you should be good to go.  

Mr. Helm learned the hard way that a MFR does not equal a NOD, and that an MFR does not "toll" the time to file a  NOD:  

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7064.Opinion.8-11-2015.1.PDF

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Helm v. McDonald is not on point. Mr. Helm lost at the BVA in 2002. In 2013, eleven years later, he opted to file a Motion for Reconsideration (MFR) to the BVA to revise the 2002 decision. They declined to do so. He then filed a Notice of Appeal (NOA) to the CAVC within the 120-day window of said MFR refusal. The problem is glaringly obvious. The law says you have 120 days to file the NOA following a denial at the BVA. Assuming, arguendo, that Mr. Helm had filed his NOA following a refusal to grant a MFR in 2002, he would have preserved his right to an appeal at the Court. You cannot come back at some distant time in the future and expect equitable tolling for a Notice of Appeal you never filed in a timely matter-or at all- within that 120-day window in 2002.

There simply is no case law on MFRs at the Agency of Jurisdiction. The path exists, but only at the BVA, Granted, you can come back anytime, much like a CUE filing, and ask for the MFR at the BVA. There is no statute of limitations on asking for a MFR. MFR grants are also about as rare as hen's teeth. The window of opportunity at the CAVC is carved in stone and absent a really good "the dog ate my homework" story, you still have to exercise the right within 120 days of the BVA declining to grant a MFR. 

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My claim was approved.  I was given the wrong effective date, and low balled on one of the conditions.

Proof of the low balled condition is in the VA Treatment records, cited as evidence in the rating decision.  Proof of the effective date error was on EBenefits server, they ignored the intent to file date, award date was the actual date I finally submitted my claim.  Both of these are CUE, and in a NOD, as appeal, it could take years to correct.

Reading M21-1, part 3, subpart 2, chapter 2, Section F - Requests for Reconsideration - (Updated 7/15/15) a. Definition: Request for Reconsideration,

 

For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired). A prescribed form is not required for a request for reconsideration.

A request for reconsideration differs from a claim to reopen in that the decision at issue in a claim to reopen has become final.

I didn't note anything restricting reconsideration to BVA/COVA, so I called Peggy.  In Mar 2015, the Section F was Section G, changed in Jul 2015 to section F.The notation "A prescribed form is not required for a request for reconsideration" was added here.  Peggy told me submit request for recon on va fm 21-4138. Statement in Support of Claim.  I had a new exam that I cited as new evidence after the rating decision, validating current condition, after the rating decision, which is described for peripheral nerves at 40% in the M21, the same as before the rating decision. 

I explained both errors in detail, explained that the evidence was on hand when the decision was made, and noted that 38CFR 4.6 was violated in the rating decision because 9 examinations and/or consultations about my condition were ignored that indicated, according to M21 rating instructions, the higher rating was correct, and that no notice as to why these 9 examinations and/or consultations was provided explaining why they were not applied in the decision.

So at the end, I am still in the 1 year appeal tramework, and can provide  new evidence, and can cite CUE for reconsideration.  I didn't use the words CUE. 

Claim is still closed, on EBenefits under disabilities, not changes, except under Pending Disabilities, it shows all of my conditions, as Inc., with links to "view pending claim" at the end.  The link is a claim, went to review, and now is at Gathering of Evidence.  This AM I got a note for a 5103, which I also did on EBenefits.  Contacted Peggy twice, and it was validated that I triggered a de Novo review of my decision. 

 

Now I just have to wait and see.  I have 10 months to go before the rating decision is final.

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Just imagine arriving with a theory that VA owed you all the way back to your first filing... in 1994. And you want 100% plus SMC S back to then. You'll probably still fight for 8 years unless you get a VA attorney to walk it through in half the time. I began July 8th ,08 on appeal. I won last month. Three BVA decisions. Two trips to the CAVC. We can shave off some time for you by our errors.

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