Reconsideration - Where Is It In The Regs?

[tssnave]

I have been reading some of the posts from the last week or so that I missed while I was out of town. Once again there are questions about reconsideration vs filing a NOD.

Could someone please give the governing regulation in the CFR as well as its location in the M21 for reconsiderations?

Thanks,

ts

PS - Vike17, good to see you back.

Edited May 11, 2007 by tssnave

[allan]

TRANSMITTAL #: 49

DATE: 11/29/2002

TRICARE CHANGE #: N/A

CHAMPVA POLICY MANUAL

CHAPTER: 3

SECTION: 1.3

TITLE: RECONSIDERATION/APPEAL OF CLAIMS

AUTHORITY: 38 CFR 17.270(a) and 17.275-278

I. DEFINITION

An appeal is a request for an administrative review of a decision.

II. POLICY

A. If a health care provider, beneficiary, legal guardian or beneficiary’s representative (designated as such in writing by the beneficiary/legal guardian) disagrees with the initial determination concerning covered services or calculation of benefits, he or she may request reconsideration.

B. Requests for reconsideration must:

1. be submitted to the Director, Administration Division, Health Administration Center (HAC) in writing,

2. be submitted within one year of the date of the initial determination (an initial determination may be an explanation of benefits (EOB) or letter),

3. state why it is believed the decision is in error, and

4. include any new and relevant information not previously considered.

C. A request for reconsideration that does not identify the reason for the dispute will be returned without further consideration.

D. An untimely request for reconsideration will be denied.

E. After reviewing the claim and relevant supporting documentation, a written determination will be issued.

1. The determination will affirm, reverse, or modify the original determination.

2. The request for reconsideration will be reviewed on the merits of the documentation and/or argument made in support of such request.

3-1.3-1

TRANSMITTAL #: 49

DATE: 11/29/2002

TRICARE CHANGE #: N/A

3-1.3-2

F. If there is still disagreement, a written request for review to the Health Administration Center (HAC) Director may be made within 90 days of the date of the first reconsideration decision.

1. The Director or designee will review the claims and any relevant supporting documentation and issue a decision in writing that affirms, reverses, or modifies the previous decision.

2. The decision of the Director with respect to benefit coverage and computation of benefits is final.

G. Board of Veterans Appeals.

1. Appeals based on administrative requirements may be appealed to the Board of Veterans Appeals in accordance with 38 CFR 20.10(b).

2. The Board’s jurisdiction extends to questions of eligibility.

3. Medical determinations, such as the need for and appropriateness of specific types of medical care or treatment, are not appealable to the Board.

4. HAC determinations regarding the Board’s jurisdictional authority may be appealed to the Board. For example, if HAC denies skilled nursing services as not medically necessary and the beneficiary requests an appeal to the Board, that request would be denied as not within the Board’s jurisdiction. It is the decision regarding the Board’s jurisdiction that could then be appealed.

*END OF POLICY*

SOURCE: http://www.va.gov/hac/forbeneficiaries/cha...ap3/1c3s1.3.pdf

[allan]

§20.1001 Rule 1001. Filing and disposition of motion for reconsideration.

(a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans’ Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans’ Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.

(b) Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans’ Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

© Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:

(1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion.

(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter. (Authority: 38 U.S.C. 7103, 7108)

[57 FR 4109, Feb. 3, 1992, as amended at 67 FR 16023, Apr. 4, 2002]

SOURCE: http://www.warms.vba.va.gov/Regs/38CFR/BOO...20/S20_1001.DOC

[Vike17]

See M21-1MR, Part III, subpart II, section E, §20( c , for reconsiderations.

Furthermore, a "reconsideration" can only be requested if you submit "new" evidence that the decision maker was previuosly unaware of at the time of that decision. The effective dates governing a recondiseration can be found under §4.400(q).

An appeal is should be initiated with an NOD when you disagree with a decision from VA and how they may have weighed ot interpretated the evidence. Granted, you can also submit "new" evidence during an appeal, but one would probably be better served time wise if they were request a "reconsideration" in this isstance.

There has been considerable discussion lately as to whether one would neeed to submit an NOD if the VA hadn't yet made a determination on a "request for reconsideration" where it was initiated within the one year of the initial decision. From what I gather one does not need to do this. Check out this link to where I asked the same question and the response from a retired DRO.

http://p203.ezboard.com/fvetbenefitsfrm73....picID=500.topic

I hope this helps!

Vike 17

[stevedenesha]

I couldn't find the reconsideration in the regs either. Vike17 - The reg that you posted refers to reconsideration at the BVA and I don't believe it refers to reconsideration at the VARO level?

Steve

[Vike17]

Steve,

The M21-1MR regulation I posted referes to the "reconsideration" of a claim after submitting "new" evidence. This link should take you to it;

http://www.warms.vba.va.gov/M21_1MR.html#bii

The regulations Allan posted do refer to "reconsiderations before the BVA.

If this doesn't answer your question, I'll try to post the actual reg.

Vike 17

[stevedenesha]

Steve,

The M21-1MR regulation I posted referes to the "reconsideration" of a claim after submitting "new" evidence. This link should take you to it;

http://www.warms.vba.va.gov/M21_1MR.html#bii

The regulations Allan posted do refer to "reconsiderations before the BVA.

If this doesn't answer your question, I'll try to post the actual reg.

Vike 17

It would be nice if you posted the actual reg or at least the chapter and paragraph that deals with a reconsideration after an initial denial.

Thanx

Steve