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

[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

[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