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

[john999]

1968

With the VA it is like using judo. You have to use their words against them. If they make certain assertions then you get your medical expert to exactly refute those claims. They often make blunders you can turn to your advantage. The VA will prevert a medical opinion or evidence to deny a claim. They did it to me often times. Other times they took every word from my doctor and expanded my claim into uncharted waters.

[allan]

§ 1133. Presumptions relating to certain diseases

(a) For the purposes of section 1131 of this title, and subject

to the provisions of subsections (b) and © of this section, any veteran

who served for six months or more and contracts a tropical

disease or a resultant disorder or disease originating because of

therapy administered in connection with a tropical disease, or as

a preventative thereof, shall be deemed to have incurred such disability

in the active military, naval, or air service when it is shown

to exist within one year after separation from active service, or at

a time when standard and accepted treatises indicate that the

incubation period thereof commenced during active service.

(b) Service-connection shall not be granted pursuant to subsection

(a), in any case where the disease or disorder is shown by

clear and unmistakable evidence to have had its inception before

or after active military, naval, or air service.© Nothing in this section shall be construed to prevent the

granting of service-connection for any disease or disorder otherwise

shown by sound judgment to have been incurred in or aggravated

by active military, naval, or air service.(P.L. 85–857, Sept. 2, 1958, 72 Stat. 1123, § 333; renumbered § 1133 and amended

P.L. 102–83, § 5(a), ©(1), Aug. 6, 1991, 105 Stat. 406.)

§ 1154. Consideration to be accorded time, place, and circumstances

of service

(a) The Secretary shall include in the regulations pertaining to

service-connection of disabilities (1) additional provisions in effect

requiring that in each case where a veteran is seeking service-connection

for any disability due consideration shall be given to the

places, types, and circumstances of such veteran’s service as shown

by such veteran’s service record, the official history of each organization

in which such veteran served, such veteran’s medical

records, and all pertinent medical and lay evidence, and (2) the

provisions required by section 5 of the Veterans’ Dioxin and Radiation

Exposure Compensation Standards Act (Public Law 98–542;

98 Stat. 2727).

(b) In the case of any veteran who engaged in combat with the

enemy in active service with a military, naval, or air organization

of the United States during a period of war, campaign, or expedition,

the Secretary shall accept as sufficient proof of service-connection

of any disease or injury alleged to have been incurred in or

aggravated by such service satisfactory lay or other evidence of

service incurrence or aggravation of such injury or disease, if consistent

with the circumstances, conditions, or hardships of such

service, notwithstanding the fact that there is no official record of

such incurrence or aggravation in such service, and, to that end,

shall resolve every reasonable doubt in favor of the veteran. Service-

connection of such injury or disease may be rebutted by clear

and convincing evidence to the contrary. The reasons for granting

or denying service-connection in each case shall be recorded in full.

(P.L. 85–857, Sept. 2, 1958, 72 Stat. 1124, § 354; P.L. 94–433, § 404(20), Sept. 30,

1976, 90 Stat. 1379; P.L. 98–542, § 4, Oct. 24, 1984, 98 Stat. 2727; P.L. 102–54,

§ 14(b)(1), June 13, 1991, 105 Stat. 282; renumbered § 1154 and amended P.L. 102–

83, § 4(b)(1), (2)(E), 5(a), Aug. 6, 1991, 105 Stat. 404–406.)

§ 5905. Penalty for certain acts

Whoever (1) directly or indirectly solicits, contracts for,

charges, or receives, or attempts to solicit, contract for, charge, or

receive, any fee or compensation except as provided in sections

5904 or 1984 of this title, or [u](2) wrongfully withholds from any

claimant or beneficiary any part of a benefit or claim allowed and

due to the claimant or beneficiary, shall be fined as provided in

title 18, or imprisoned not more than one year, or both.(P.L. 85–857, Sept. 2, 1958, 72 Stat. 1239, § 3405; P.L. 99–576, § 701(81), Oct. 28,

1986, 100 Stat. 3298; P.L. 100–687, § 104(b), Nov. 18, 1988, 102 Stat. 4109; renumbered

§ 5905 and amended P.L. 102–40, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat.

238, 239; P.L. 102–83, § 5©(1), Aug. 6, 1991, 105 Stat. 406.)

§ 6103. Forfeiture for fraud

(a) Whoever knowingly makes or causes to be made or conspires,

combines, aids, or assists in, agrees to, arranges for, or in

any way procures the making or presentation of a false or fraudulent

affidavit, declaration, certificate, statement, voucher, or paper,

concerning any claim for benefits under any of the laws administered

by the Secretary (except laws pertaining to insurance benefits)

shall forfeit all rights, claims, and benefits under all laws

administered by the Secretary (except laws pertaining to insurance

benefits).

Edited May 14, 2007 by allan

[tssnave]

Thanks, all, for the replies.

Vike17,

I see in the regs you posted where you can reopen a claim for service connection but don't see where it states that a request for increase based on new and material evidence is covered under the same regulation.

What, if any, is the down side to just filing a NOD based on new and material evidence instead of going the reconsideration route where, based on my understanding of Berta's posts, you still have to track with the NOD deadline and send in a NOD if they don't get to your reconsideration request within 1 year?

If there is truly a "deny and delay" attitude at the VA it would seem that a reconsideration request could just stall them having to look at the information you send in.

Please remember, that in 1968's case, he is looking for service connection for his disability, which is clearly the situation that the regs for "re-opening" a claim covers. In my situation, I have been granted 50% but am submitting an IMO that will show symptoms consistent with 70%. I will also be submitting a request for IU at the same time with supporting documents.

I want my rating evaluation request to go back to the DRO, which I know I can request in a NOD. However, with a NOD to the DRO the DRO officer who adjudicated my claim will not be the one looking at it again. If a reconsideration would make it so the guy who rated me 50% would be the one to review the new and material evidence then that would be a good reason, to me, to go the reconsideration route. I can find a reg that tells me if you go the NOD DRO route twice that the second time around a NEW DRO has to look at your request. I am uncertain where a reconsideration request goes - back to the person who made the initial decision or back to the department that made the decision (in my case, the DRO) or worse, back to the regular raters who didn't have enough sense in the first place to approve my claim.

If a reconsideration would go back to the DRO rater who granted 50% then I'm happy to go reconsideration. If it goes to the DRO or the regular raters, forget it. I'll go NOD just to get it to any DRO officer rather than risk the incompetence at the regular rater's department.

Also, again, if I just have to file an NOD before the year runs out anyway I don't see the advantage to requesting a reconsideration, especially if I can't find the reg that specifically addresses requesting reconsideration of percentage rating based on new and material evidence.

I'd love to see the reg that speaks to my specific situation where I submitted a claim that was denied service connection, sent in a NOD and the DRO developed the claim and granted 50%, and now I want the DRO to review my IMO which will show symptoms of 70% and ultimately, IU. Without a reg that addresses my particular situation I am hesitant to go the reconsideration route since I already have service connection.

Please clarify. I should be getting my IMO this week. I'm anxious to have a look at it. Of course, after reading what the VA did to 1968's IMO I can't help but wonder just how badly the VA will hack it up. I'd like to be certain I'm on the right side of the regs no matter what I do.

Thanks,

ts

[Vike17]

tssnave,

After tracking down the information for the questions you asked, I'll post it here and try to make it as claer as possible.

"I see in the regs you posted where you can reopen a claim for service connection but don't see where it states that a request for increase based on new and material evidence is covered under the same regulation"

After digging through some of the regulations, it appears the VA has, I think as of Nov. 2004, changed the terminology of re-opened claims. According to the M21-1MR, Part III, subpart II, Section 19(, the VA has redifined that term, it states;

b. Definition: Reopened Claim: A reopened claim is any claim for service connection, received after a finally denied claim, which VA must reconsider because the evidence it presents is new and material. A finally denied claim means that at least one year has elapsed since the letter was sent notifying the claimant of the decision to deny the benefit sought.

Note: The term “reopened” does not apply to pension, increased ratings, or individual unemployability. Those claims involve the review of new evidence based on new applications, rather than reconsideration of prior decisions. For this reason, they are “new” claims.

Reference: For more information on reopened claims, see 38 CFR 3.160(e)

Sorry, you're correct. I was unaware that VA changed the terminology of "re-opened claim" as of 2004. Before that Re-opened claimed included that of a claim for increase; the claim was closed at and the veteran was 're-openeing it for an increase in evaluations.

Having said that, the effective dates for increases and re-opened claims are almost similar;

"§3.400(o) Increases (38 U.S.C. 5110(a) and 5110(B)(2), Pub. L. 94-71, 89 Stat. 395; §§3.109, 3.156, 3.157):

(1) General. Except as provided in paragraph (o)(2) of this section and §3.401(B), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim

§3.400q) 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(B)(1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

§3.400® Reopened claims. (§§3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in §20.1304(B)(1) of this chapter. (Authority: 38 U.S.C. 501(a))"

As far as the question;

"What, if any, is the down side to just filing a NOD based on new and material evidence instead of going the reconsideration route where, based on my understanding of Berta's posts, you still have to track with the NOD deadline and send in a NOD if they don't get to your reconsideration request within 1 year"

The down side of just filing a NOD with new evidence is the time frame involved to resolve the issues. As I said before, a 'reconsideration' generally goes faster because it goes back to the Rating Activity who made the prior decision and is worked according the claims original effective date. Whereas a NOD goes to the Appeals Team and is worked according to the date the appeal was filed. As far as this thing with sending in an NOD if the reconsideration hasn't been decided within the one year, there has been many discussions about this in the past with many differing opinions. See the thread "reconsideration" here on this forum. One thing to keep in mind is that normally I would assume a "request for reconsideration" would be decided before the appeals period has elpased for the reason I pointed out above with being worked according the original effective date. So the possibility of having to submit a NOD on top of this is probably the exception and not the norm. Of course this also depends on when a claimant sends in the new evidence with a request for reconsideration. If you were to do this in the 11 month of the appeals period , then I would suspect one wouldn't receive a decision within 30 days. Do you see what I mean?

"If there is truly a "deny and delay" attitude at the VA it would seem that a reconsideration request could just stall them having to look at the information you send in"

That's just it, there is no "deny and dely" attitude or agenda at VA. The VA would like nothing more for this backlog to go away. Why would they want to make the work that is before them even harder and more drawn out?? I suspect many VA employees are getting rather tired of working six day work weeks! Now I suppose there are peolpe out there that will say they dely claims so they don't have to pay the compensation. That is the biggest myth out there. The VA has to pay the claim from the effective date regardless of the amount of money involved. So, whether the claim is granted in one month or 100 years, the amount of money being paid out is the same over he lifetime of that compensation claim. The amount of money involved in a claim has no affect what so ever on the decision. Just ask the veteran last year who I helped win over $100,000.00 in retro and $2,600.00 in monthly compensation thereafter. "Delay and Deny" is the biggest attention getter with the press, nothing more.

"I want my rating evaluation request to go back to the DRO, which I know I can request in a NOD. However, with a NOD to the DRO the DRO officer who adjudicated my claim will not be the one looking at it again. If a reconsideration would make it so the guy who rated me 50% would be the one to review the new and material evidence then that would be a good reason, to me, to go the reconsideration route. I can find a reg that tells me if you go the NOD DRO route twice that the second time around a NEW DRO has to look at your request. I am uncertain where a reconsideration request goes - back to the person who made the initial decision or back to the department that made the decision (in my case, the DRO) or worse, back to the regular raters who didn't have enough sense in the first place to approve my claim"

Like I said, the reconsideration request goes back to the team that made the prior decision, hence reconsider. Now, I'm not saying your reconsideration request will automatically go directly back to the individual RVSR that made the last decision. It could and could not. I suspect that would be up to the Rating Team's Coach and dependent on the current workload before them.

"If a reconsideration would go back to the DRO rater who granted 50% then I'm happy to go reconsideration. If it goes to the DRO or the regular raters, forget it. I'll go NOD just to get it to any DRO officer rather than risk the incompetence at the regular rater's department"

Whoever (the Team) made the prior decision on that particular claim, that's where your reconsideration request will go.

"Also, again, if I just have to file an NOD before the year runs out anyway I don't see the advantage to requesting a reconsideration, especially if I can't find the reg that specifically addresses requesting reconsideration of percentage rating based on new and material evidence"

Like I said before, it's matter of time as I outlined at the top of this post depending on when you submit the request for reconsidertion. As far as the regulation, see §3.400(q).

I'd love to see the reg that speaks to my specific situation where I submitted a claim that was denied service connection, sent in a NOD and the DRO developed the claim and granted 50%, and now I want the DRO to review my IMO which will show symptoms of 70% and ultimately, IU. Without a reg that addresses my particular situation I am hesitant to go the reconsideration route since I already have service connection"

O.K., if you were granted service-connection at 50% on a DRO review, you received a rating decision outlining why they came to thatdecision and percentage. Also, in this case, I think you should have received a SOC because the 50% probabaly wasn't the highest evaluation you could obtain on appeal. So if this is the case, you have three avenues of approach; 1) Submit an NOD on the rating decision, 2) sumit VA Form 9 within 60 days of the statement of the case, or 3) send in 'new' evidence within the 60 days of the SOC, which will prompt the VA either to "reconsider" the issue of a higher rating based on the new evidence, or issue a SSOC. However, in this case I'm not sure whether you would have received a SOC or not, because you appealed the issue of service-connection, not the actual percentage, which means you recieved a full grant of benefits sought on appeal. At any rate regardless if you received just a rating decision from the Appeals Team, or you received a SOC also, I outlined the possible course(s) of action you have. The M21-1MR, Part 1, chapter 5, section C, §11, should answer your question as to who has jurisdition of your case after the intial DRO review when you either submit an NOD, or new evidence.

I hope this has helped you and answered your questions.

Vike 17

[SLEDGE]

"The VA would like nothing more for this backlog to go away. Why would they want to make the work that is before them even harder and more drawn out??"

Are you serious?

sledge

[allan]

1968army,

the laws I posted below came from title 38 cfr.

I've worked for the government & have family that have gave & dedicated their lives working for the government.

What pisses me off, is the ones that cheat their way through the day, & pass it off as government work. If they were weeded out of the business by their colleagues, instead of having it swept under the rug, the VA wouldn't have such a bad rep or have to sweat what the media says.

Concerning YOUR claim & what I posted below?

6103. Forfeiture for fraud

(a) Whoever knowingly makes or causes to be made or conspires,

combines, aids, or assists in, agrees to, arranges for, or in

any way procures the making or presentation of a false or fraudulent "statement" or paper, concerning any claim for benefits, under any of the laws administered by the Secretary shall forfeit all rights, claims, and benefits under all laws administered by the Secretary (except laws pertaining to insurance benefits).

§ 5905. Penalty for certain acts

Whoever (2) wrongfully withholds from any

claimant or beneficiary any part of a benefit or claim allowed and

due to the claimant or beneficiary, shall be fined as provided in

title 18, or imprisoned not more than one year, or both§

I read, that this says Veterans, claims adjusters, NSO's, or health care staff, "WHOEVER" presents a false statement or paper concerning any claim for benefits, under any of the laws administered by the Secretary shall forfeit all rights, claims, and benefits under all laws administered by the Secretary

Service-connection of such injury or disease may be rebutted by clear

and convincing evidence to the contrary.

Thay can't alter your evidence, statements, doctors statements etc with intent to deprive you & your family of ANY benefit, without being in violation of law & loosing their benefits.

Vike,

The VA charges interest on debts owed them and pays absolutely, "0" interest to the Veteran, owed them for decades. With that kind of setup, of coarse theres no monetary difference.

Good for the dept of Veterans affairs, but bad for Veterans.

Has it ever dawned on you, just how many veterans "DIE" waiting?

Good for the dept of Veterans affairs, but bad for the veterans & their families.