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

[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