Reconsiderations

[FormerMember]

For your information:

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

[pwrslm]

My Recon is due to CUE ( In ref to ASKNOD above),  the facts are distinct, clear and unmistakable.  The VBA failed to apply CFR, and M21 guidelines that should be followed in every claim they process.  I left out the term CUE, but documented the whole issue, to include the Colvin violation, in detail, so I could submit additional examinations as new evidence to prove that my condition before and after the rating decision was the same.  If they don't act on this by 1 Dec, I will withdraw that and submit an NOD based on CUE.  Why?  Because 23 Nov I have back surgery and the new claim will be for 100% convalescent UI for 3 months, then they will need to reevaluate my condition.  I am giving them the grace period out of courtesy.   If they have any dispute as to my condition, they have until then to validate their points, beyond that it becomes moot and they must rely on the existing records. So far, they have blown it.

The complete disregard of the M21 evidence guides and rating instruction in my claim decision tells me a lot.   If it takes them more than just a short time to jump on this issue, and correct it,  I am going to document the whole thing and present it to the House Committee on Veterans Affairs, there is absolutely no excuse that this type of work ever comes out of the VBA with its multi-billion dollar budget.   My case is a classic example of top sheeting decisions, and this type of behavior by the VBA is the cause of a huge amount of appeals, ands a huge waste of resources by the US Government. 

[tincow]

Registered just to respond here because I saw some misinformation that I believe needs to be corrected.  The RO-oriented reconsideration that is noted in M21-1 comes from 38 CFR 3.156(b).  The reason none of you are looking at that is because the actual regulation does not refer to the situation as a "reconsideration."  That word is used in that context at the RO in a manner that is very different from how it operates at the Board, and it somewhat misleading to even call it a reconsideration at the RO level.  It is simply a situation in which the finality of the RD is vitiated.  If you want to know exactly what 3.156(b) does, you should read Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014).

[FormerMember]

38 CFR 3.156(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

 

No reference to "reconsideration". For VA raters to torture it out of 156(b) is voodoo law. I stand by my observation that it should only be employed in situations of medical/financial emergent situations that demand Rule 900 intercession.

 

Beraud v. McDonald in Buckwheatspeak:

https://asknod.wordpress.com/2014/09/13/fed-circus-beraud-v-mcdonald-justice-interuptus-ii/

The M 21 is a tool to aid in adjudications. As such it carries the impetus of an interpretation of a regulation (but not a statute). The M 21 is often wrong, or should I say, the raters use it in such a haphazard manner that it provokes far more errors than it seeks to address. The M 21 is also corrected on almost a monthly basis due to new precedence at the Court and Federal Circus. Bradley, Groves, Buie and many others constantly force them to reword it. Utilizing the M 21 to understand your claims denials logic is like reading last year's newspapers. 

P.S. Or like believing eBenefits information is in real time.

Edited November 11, 2015 by asknod

[pwrslm]

But they wrote it and published it.  No FOIA required.

Their tool, their power supply, beyond that its an open field.  If its not valid, it sure is a huge waste of Government resources.  Let THEM tell folks it aint' so.

[FormerMember]

When you appeal a decision, you have two "reasons or  bases for doing so.  Case or Controversy.

1) Case: Case means law. If the law is incorrectly interpreted by VA, and it apparently is 67% of the time based on the rate of vacates, set asides and reversals cumulatively from the BVA or CAVC/Fed. Cir., then the claim  is remanded to comply with law. Just because the M 21 for years said TDIU was not a  100% "rating" did not make it so. Bradley cleared up that misconception. M 21 also said you had to use the ratings in order of award date to add them up towards a SMC S entitlement. Buie rewrote that. In sum, the M 21 is dynamic. A precedent from the Court immediately voids the M 21 interpretation. VA can declare anything they want judicially as long as it hews somewhat closely to the regulation/ statute. It can prevail for years or decades but as quickly as it is discovered to be faulty, it is discarded. See Walker v. Shinseki on 3.303(b).  VA is fond of reinterpreting existing regs to say what they feel they say. It doesn't make it law. Squeezing 3.156(b) into regurgitating a new meaning  of "reconsideration" as a "pre-NOD" is disingenuous but not given any force of law. The very first BVA/CAVC case to attack it will show it is not in accordance with law-and therefore null and void.

2) Controversy: Controversy means what it says. You dispute the findings of fact that a VA rater has arrived at. Controversy can only encompass the evidence of record (EOR) or medical findings that are at odds with accepted and published literature. If you can show VA has misinterpreted or skewed the facts to arrive at an incorrect decision, you either win or get a remand to present your side all over. 

If VA said the DM2 you suffer from is not related to Agent Orange and you were never boots on the ground, that can be a two-fold error of both case and controversy. DM2 is presumptive via 3.309(e) and if proven to exist, is automatically awarded absent some extraneous reason. The only controversy would be the debate as to your presence in RVN. If your 214 shows it, and VA misses it, it's controversy. 

The path to reconsideration has been there for years without a specific definition of it being a quicker de novo review -usually to right a wrong quickly for an egregious error that probably should not have been made in the first instance. You do not need to file for it. You or a good legal minder usually calls up the VARO manager or Director and explains the snafu. They take a gander at it and fix it. Homeless folks and those with emergent medical situations/ dire financial deficits get this consideration frequently. It's the law.  90 days. However, those of us who are not dying or living under a bridge do not. If we ask for a reconsideration immediately upon receipt of a bogus rating, we often can correct it. That is accomplished via an attorney or you in person at the RO. I have yet to see a VSO accomplish this but that is not proof they can't or won't. 

I had a Vet who recently won but was lowballed at 20%. He was legitimately 100% for Hep C. He bought a dog of a motor home and had no physical address except his attorney's. Bingo. Homeless. Instead of having to wait 585 days for his DRO reconsideration at Oakland, he was advanced and given a C&P pronto. He had the 100% in less than 90 days and the $140 K  retro in the bank. Every situation demands its own repair order. Just because several of you have a different experience with a reconsideration, do not for a moment assume your circumstances are normal and your fellow Vets will be accorded the same treatment.  I often am not told the complete story when asked for help. I have to drag the facts out to find out the real problem-and a real solution to it. 

There is no such thing as a shortcut with VA unless you are in dire circumstances or you're related to President Obama.

 

Edited November 11, 2015 by asknod