Reconsiderations

[FormerMember]

For your information:

https://asknod.wordpress.com/2015/10/23/varo-requests-for-reconsideration/

[RUREADY]

there is such thing as MFR but I already knew this and if you think there is

not such a thing as reconsideration keep reading and learning pwrslm dead on

clock running but you can file it.

[FormerMember]

VA is welcome to bandy about terms like "reconsideration" but they are bound by 38 USC and 38 CFR. Turning to Part 19, where these mechanisms are described and defined, take a look at §19.26:

§ 19.26 Action by agency of original jurisdiction on Notice of Disagreement.

(a) Initial action. When a timely Notice of Disagreement (NOD) is filed, the agency of original jurisdiction (AOJ) must reexamine the claim and determine whether additional review or development is warranted.

(b) Unclear communication or disagreement. If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant's intent. This contact may be either oral or written.

(1) For oral contacts, VA will contact whoever filed the communication. VA will make a written record of any oral clarification request conveyed to the claimant including the date of the adverse decision involved and the response. In any request for clarification, the AOJ will explain that if a response to this request is not received within the time period described in paragraph (c) of this section, the earlier, unclear communication will not be considered an NOD as to any adverse decision for which clarification was requested.

(2) For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any.

(c) Response required from claimant—

(1) Time to respond. The claimant must respond to the AOJ's request for clarification within the later of the following dates:

(i) 60 days after the date of the AOJ's clarification request; or

(ii) One year after the date of mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims).

(2) Failure to respond. If the claimant fails to provide a timely response, the previous communication from the claimant will not be considered an NOD as to any claim for which clarification was requested. The AOJ will not consider the claimant to have appealed the decision(s) on any claim(s) as to which clarification was requested and not received.

(d) Action following clarification. When clarification of the claimant's intent to file an NOD is obtained, the AOJ will reexamine the claim and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, the AOJ will prepare a Statement of the Case pursuant to § 19.29 unless the disagreement is resolved by a grant of the benefit(s) sought on appeal or the NOD is withdrawn by the claimant.

(e) Representatives and fiduciaries. For the purpose of the requirements in paragraphs (b) through (d) of this section, references to the “claimant” include reference to the claimant or his or her representative, if any, or to his or her fiduciary, if any, as appropriate.

(Authority: 38 U.S.C. 501, 7105, 7105A)

(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0674)

[71 FR 56871, Sept. 28, 2006]

 

One thing in Part 19 you will not find is any reference to "reconsideration". § 19.27 discusses it somewhat further but again, never uses the term "reconsideration"

 

§ 19.27 Adequacy of Notice of Disagreement questioned within the agency of original jurisdiction.

If, after following the procedures set forth in 38 CFR 19.26, there remains within the agency of original jurisdiction a conflict of opinion or a question pertaining to a claim regarding whether a written communication expresses an intent to appeal or as to which denied claims a claimant wants to appeal, the procedures for an administrative appeal, as set forth in 38 CFR 19.50-19.53, must be followed.

§ 19.50 discusses Administrative appeals but again the elusive word  reconsideration is not mentioned.

§ 19.50 Nature and form of administrative appeal.

(a) General. An administrative appeal from an agency of original jurisdiction determination is an appeal taken by an official of the Department of Veterans Affairs authorized to do so to resolve a conflict of opinion or a question pertaining to a claim involving benefits under laws administered by the Department of Veterans Affairs. Such appeals may be taken not only from determinations involving dissenting opinions, but also from unanimous determinations denying or allowing the benefit claimed in whole or in part.

(b) Form of Appeal. An administrative appeal is entered by a memorandum entitled “Administrative Appeal” in which the issues and the basis for the appeal are set forth.

(Authority: 38 U.S.C. 7106)

 

The long and the short of it is simple. VAROs are under the gun to rid themselves of the backlog and have set the end of 2015 to reach it. If you file for a mythical reconsideration at the RO without filing a NOD, you are at risk of "timing out" on the one-year suspense date for your NOD as the above BVA decision I cited to shows. You are also at the mercy of brain dead raters who can't comprehend what it is you desire. In the new World of VA, certain documents are now "action documents". I refer to the 21-0958 NOD. Sending in a 4138 to protest on is not going to evoke much of a response. If the claim were still in its infancy and being developed-yes. It would be added to the "evidence for" pile hopefully.  If you were going to employ this tactic, I would suggest you do so under the tutelege of an attorney who is in constant contact with your rater on a fairly regular basis. In the alternative, I would visit the RO and present the reconsideration request verbally, as well as in writing, to the rater personally. If the idea is to motivate VA to change the decision in your favor, you have to be hands on and proactive. Simply sending in a request for a recon is not going to elicit what you hope for. If that were the case, the myriad requests and endless reams of paperwork I sent them to reconsider my case would have been addressed somewhere between April 1994 and February 2015. 

 

I think reconsiderations could be a valuable tool but absent any legal mechanism to describe their existence and parameters, they appear to be somewhat nebulous. I work with laws and regulations. Merely stating that a reconsideration process exists at the AOJ level without a regulation to support its existence is disingenuous. I cannot argue the existence (or absence) if I cannot cite to it. In the context of sending in new and material evidence to provoke a reconsideration following a denial, the path is well known and used frequently by attorneys. However, they sit on it like a mother hen and push hard. Most are employed where financial/medical hardship exists and there is a concerted effort to resolve the claim promptly at the local level. VSOs do not do this as a rule. Again, with the backlog, the chances of it be reviewed de novo in that suspense window of one year following denial is a problem. What good is an adjudicative tool if it has a hand grenade attached to it?  

 

If I had a dollar for every erroneous piece of advice VA handed me, I'd be filthy rich. The best was when I won in 2008. The rater called me up to tell me I was now 100%. Since I was, why should I pursue any additional claims to get my rating higher? The 100% ceiling had been reached and there simply was no more money to be had, right? He never mentioned SMC S. VA law also says that if you depend on VA legal advice to your detriment and are substantially harmed, you have no recourse for remuneration. That's why we are allowed VSOs and attorneys to protect and advise us. So, in summary, if you file a request for reconsideration and VA fails to act on it within the year of the denial, your claim is final and closed for failure to file a NOD. Game, set and match. Looks pretty nonadversarial and Veteran-friendly to me.

 

[RUREADY]

bull crap u said there is no such claim a reconsideration you can file this at anytime

within your filling limits 90 day a year what ever the case may be ... A reconsideration does not have to

be with BVA a recon can be file anytime you ask ???? get new evidence or evidence that was not considered

Edited October 24, 2015 by RUREADY

[RUREADY]

with new evidence what you call it, evidence not concider is that new evidence????

A recon is in affect

[RUREADY]

you can ask VA to CUE themselves ,,,but a reconsideration has no merit in the claim process until

BVA and after it been posted Just ASK FOR IT never know might get lucky. RU

[FormerMember]

I apologize. Apparently, I don't know what I'm talking about. Back to school for me. I'll report back when I locate the regulation/statute that permits and defines "reconsideration". Meanwhile, you fellers keep hanging those 4138 recons on eBennies and keep score. I'm all in with you.

Just remember. The M21 is an "adjudicative tool" to aid in claims. As such, it is an advisory manual (and has no force of law) and is always subject to revision if found to be at odds with statutes/regulations governing the subject. Surely, somewhere here on Hadit or another Veterans help site, we can find successful claimants who employed this device to win. Anyone? Speak up.