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 (see edit history)

[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

[tssnave]

Thanks for the links and info.

Doing a search on "reconsideration" of the M21-1MR that Vike 17 listed takes you to Part Xi, Chap 5, Sec D which has to do with misuse determinations, which isn't my situation.

Running a search on "new" brings you to Part III, Subpart iv, Chap 2, Sec B "Reviewing for New and Mterial Evidence" overview. Pag 2-B-2 speaks of "revising" prior determinations but the word "reconsider" doesn't appear until pg 2-B-7, Section e "Reconsidering the Claim" where it states:

"Reconsider the claim in light of all previously existing and newly submitted evidence once it is determined that new and material evidence has been submitted."

But I don't find a reg for reconsideration. Nor do I find any information about it in my first attempt at using my new Veterans Benefits Manual (VBN).

The term "reconsideration" is used a lot on the hadit board and from Vike17's posted link, other veterans' boards as well, but I can't find a supporting reg that covers the process of reconsideration vs an appeal of my rating based on new and material evidence submitted within the 1 year appeal period. Mine is not a reopened claim where I was denied benefits but a request for increase during the 1 year appeal period based on new and material evidence.

I have also not seen a regulation that explicitly states that if you file a "reconsideration" that you are exempt from filing a NOD within 1 year. I would hate to miss a VA deadline since that impacts the EED.

If I can't find clear information on what reg I'd be trying to follow then I'm just going to submit a NOD because there is clear documentation on that route. I'd prefer to go reconsideration if it truly does save time but in the absence of a regulation to cite and follow I'll plod through with an NOD.

What vets may see happen in their VARO may not be what happens in my VARO so I need to stick to the books. I just read how quickly the RI and Boise, ID VAROs process their claims and it makes me wish I lived in their region!!

Thanks for all the help, I'm still open to well documented and regulation supported suggestions on how to proceed.

Thanks,

ts

Edited May 11, 2007 by tssnave (see edit history)

[Vike17]

A "request for reconsideration' is actually "re-opening" one claims within the one years appeals period by submitting "new" evidence. The only thing different with this "re-opening" of a claim from a any other type (re-opening a previously denied claim after the appeals period has elapsed or a claim for increase) is the effective date if the claim is granted based on the "new" evidence, which would be the orginal date of the claim.

M21-1MR, Part III, subpart II, Section E, §20( c ) states;

"Correspondence from a claimant asking for reconsideration for service connection is a claim to reopen.

Upon receipt of correspondence from a claimant asking for reconsideration

1)establish a control under M21-1MR, Part III, Subpart ii, 1, and

2)refer the claim for necessary development.

Note: Effective dates are governed by 38 CFR 3.400(q)

§3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (Authority: 38 U.S.C. 5110(a))

(q) New and material evidence (§3.156) other than service department records.

(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(:P(1) of this chapter"

Vike 17

[allan]

Here's 3 more.......................

§20.1000 Rule 1000. When reconsideration is accorded.

http://www.warms.vba.va.gov/regs/38CFR/BOO...20/S20_1000.DOC

20.1001 Rule 1001. Filing and disposition of motion for reconsideration

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

20.1003 Rule 1003. Hearings on reconsideration

http://www.warms.vba.va.gov/regs/38CFR/BOO...20/S20_1003.DOC

[Vike17]

Allan,

Those regulation that you posted pertain to the BVA!

Vike 17

[john999]

Vike

Bottom line you are saying that if their is no new evidence you can't get a reconsideration at the RO level. If you disagree with a decision and don't have new evidence you must NOD it, right.

[Vike17]

John999,

Yes, that's pretty much the way it works. Like I've said, to "re-open" a previously denied claim whether it be within the one year appeals period (a reconsideration) or after the appeal period has elapsed, one needs to submit "new and Material" evidence. This means evidence that the decision maker was unaware of at the time of that decision and evidence that weighs directly on why the previuos decision was denied.

A claim for increase is also considered a "re-opened" claim. Generally, the new evidence for this type of re-opened claim is the medical records from the last C&P exam that shows a worsening of the service-connected disability. However, normally the VA will just schedule the veteran a C&P to see if the disability has indeed worsened since the last one. Private treatment records from the veteran can only strengthen the claim.

Vike 17

[Berta]

"have also not seen a regulation that explicitly states that if you file a "reconsideration" that you are exempt from filing a NOD within 1 year. I would hate to miss a VA deadline since that impacts "

There is NO reg-I have stated this many times at hadit-

A Recon request does NOT stop the NOD clock-

I even posted a BVA case where the RO had told the vet his NOD time had passed. He had filed for reconsideration for a year went by and he failed to file NOD.

HOWEVER- (this rep should get an award) his vet rep- also filed a 21-4138 stating that if the Reconsideration Request does not provide the benefits sought, please consider this as a formal NOD.

The rep sent this to the RO within the year NOD time frame.

BVA accepted this as a formal NOD and remanded the claim.

[Berta]

Army- I think fraud is much too strong a word to use -the VA isnt committing fraud here- but it appears they did need a clarification of your IMO-

Vike gave the nitty gritty on Recon Requests-

I only advise filing them if you have a good argument and more evidence.

In my Recon request I sent them a General Counsel Pres Op and also their own M21-1 regs that show what they were supposed to do and didnt do.

(They said my husband did not warrant SMC consideration-he was

PTSD P & T 100%, Sec 1151 CVA 100%, (CAD 100% P & T under Sec 1151 still to be acknowledged by RO, but proven under Section 1151 and also DMII % unknown)

Direct SC at 100% plus 100% Under 1151 equals SMC . Duh.

And I told them what they based their sole denial on was not supported by fact-in the c file-(re my SMC CUE claim)

It is amazing -if you take the time to think about it all- how much new evidence a vet might often come up with-

you dont need much-just something strong enough for them to reconsider the decision-

By all means if one of their own Pres Ops or M21-1 statements helps -send that in too to support the recon request-

[Vike17]

Berta,

I know what your saying about the appeals clock not stopping with reconsideration request. However, doesn't it seem logical, that if you send in "new" evidence before the one year appeals period is over, the claim remanes "open" until the VA makes a new decision based on the "new' evidence, regardless how long it takes the VA to respond??

I'm trying to get the answer to this question, so I posted a question on another board to see if the more qualified people there could give their insight. Check out my question and some of their responses;

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

I guess this situation is just like the senario of submitting "new" evidence with 60 days of receiving a SOC. As long as you submitted the "new" evidence within the 60 days, the VA must consider them and either grant the benefits sought on appeal based on the "new" evidence, or issue a SSOC, regardless of how the VA takes to do this. In this situation you don't have to still submit VA Form 9 before the 60 days runs out if the VA hadn't yet made a determination on the new evidence before the the 60 days has elapsed.

Let's see what some of the answer still to come are on this. Maybe it will show us something we are unaware of.

Vike 17

[stevedenesha]

I don't see where this shows that a reconsideration doesn't preserve ones ability to submit a NOD after the one year timeframe. The reconsideration that you show really wasn't a reconsideration because it wasn't accepted because there wasn't any new evidence. I believe once a reconsideration is accepted a NOD isn't required within the 1 year timeframe because if the reconsideration is denied a basis for the decision will be sent to the individual and a NOD the clock would start ticking all over again.

Am I wrong?

Steve

I thought I read it in the VBM-will check-

This claim shows what I mean:

http://www.va.gov/vetapp01/files01/0106945.txt

[Vike17]

Steve,

That's what my take on this was/is At least I'm not the lone ranger on this one!

1968,

Generally, a reconsideration goes fatser becuase theyare worked according tto the original effective date of the claim, not when the appeal is filed.

Vike 17

[Berta]

I will check too Vike- thought I read this in the VBM-

Here is what seems to be the BVA case I referred to:

http://www.va.gov/vetapp01/files01/0106945.txt

[john999]

Since I have no new evidence dealing with my CUE I submitted a NOD to replace the reconsideratin request I submitted earlier. It is basically the same argument but this time I say it is an NOD and ask for a De Novo Review before I follow the traditional appeal procedures. I might as well get this thing on the road the right way.

[allan]

>Those regulation that you posted pertain to the BVA!

Vike 17

Reconsideration? thought it was the same for BVA, VARO, appeals center, etc.

Thanks for clearing that up.

>I couldn't believe the VARO had taken my IMO statement and disected it, scrambled it, changed it, and distorted it; thus, had grounds for denying my claim.

68'army,

It should be no surprize. This is the "duty to assist" we recieve & have discussed constantly for a decade on this board.

The only other option is to pay you. That is not part of the currant agenda to fund this war.

You will need to send in another IMO rebutting everything they used to deny.

More than likely, there is NO sound medical logic or science applied to the reason or basis for the denial.

If the RO was required to provide a legal bases for the denial, it was actually inforced, it would put a stop to much of this corruption.

It wouldn't hurt us to pray for the honest claims adjusters once in a while. There is a shortage of them across this country.