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]

Sorry......I meant I copied the codes from the USC, not CFR.

Search Title 38 of the US Code

http://www4.law.cornell.edu/uscode/search/uscode38.html

[tssnave]

Vike17,

Thanks for the lengthy reply. I realize you took a lot of time to answer my questions and I appreciate it. To try to make finding my follow on questions easier to spot (for me as much as you) I have labeled them Q1, Q2...... I hope you will be able to answer the follow on questions.

Your point that requesting an increase evaluation is no longer covered under the "re-open claim" definition would seem to need to flow through all of your answers about "reconsiderations", wouldn't it? ie, if a request for an increase is no longer a reopened claim then it stands to reason that as a "new" claim it would NOT go back to the DRO team who rendered the rating decision but would go to the regular raters as a new claim for increase.

Q1. Do you agree/disagree with this logic?

If so, then I would be better served to just NOD the 50% rating so I can get it back to the DRO rather than go with the regular raters who didn't accept the letter from my active duty treating doc in the first place and denied my claim. The regular raters have zero credibility with me whereas the DRO developed the evidence and made a fair rating based on the C&P exam (which I blew big time which is why I'm having an IMO to send in as new and material evidence).

Q2. Can you go the DRO route twice? IOW, if the NOD was for service connection and the DRO granted service connection, can I appeal the rating percentage and request another DRO review based on new and material evidence or would it have to go to the BVA?

Q3. I read the portion of the reg on DRO review you listed at the bottom and it is unclear to me after reading it if you can use the DRO more than once and if so, is it dependent on how the initial NOD was written (iow, can you only use the DRO to follow out one NOD or can you use the DRO for subsequent NODs?)?

No, there was no SOC. Yes, the Decision letter says, "This grants benefits sought on your Notice of Disagreement." I never got a copy of the NOD that the DAV sent in which is part of the reason I have requested my claims folder.

Q4. Is it DAV SOP for an initial NOD to just request service connection on a denied claim? It would seem to me that to request service connection AND the highest possible rating would make more sense.

It will frustrate me if I get a copy of the DAV NOD and find that they only requested service connection and not the highest rating possible. Again, I'm not clear what the DAV SOP on NODs is but common sense says ask for service connection and the highest rating possible up front.

While I did not get a SOC, the Decision letter did state that the reason they didn't rate me higher was because my disorder did not affect my ability to live independently. This was the sole reason cited as why they didn't rate me higher. They noted several symptoms from the C&P exam that are in the 70% rating criteria. The issue of my living independently is something the IMO will address. To make sure they don't add something else to their list of reasons why they won't rate me higher, my IMO will be written according to the C&P guidelines so it will be fully suitable for rating purposes.

I am sorry I got us all off track with my "deny and delay" comment. It was stupid of me to make a sweeping comment like that because all it did was take us off the topic, which is the governing regulations for reconsiderations.

Yes, I understand what you mean by submitting new evidence in the 11th month. I am currently constrained by events outside of my control as to when I submit the new evidence. My Decision was rendered late Feb. It took me all of March/April to find and visit a local shrink for 7 visits to give him the information needed to write an IMO. He should have his IMO written by the end of May. However, because he needs to review the entire C-file to ensure his report is suitable for rating, I have had to request my C-file. Well, I just found out today that my C-file is no longer at the VARO that rated my claim but is in another VA on-post office. I talked to them today and the gal literally asked me, "How do we copy your C-file?" I kid you not. It is never a good feeling when the VA asks you, the veteran, how to do their jobs. I talked to my DAV rep, he told me not to worry about it that it would get done. So.......at this point, going on 3 months post decision, I can't get the IMO completed until I get the C-file in my hands and the folks who have my records don't have a clue how to do it! But, assuming they figure out how to copy something, after I get my C-file and subsequently IMO, I will use the IMO to get my PCP to sign off on a rating sheet the DAV sent showing signs for 70%. I will also fill out the paperwork on IU and send it all in. I would like to have sent it all in by now but given that the IMO doc needs to see my C-file so they won't throw out his report, I am at the mercy of the VA to get me a copy of my C-file.

Lastly, more as a side note than anything, I was unable to find the reg you quoted in the beginning of your post:

M21-1MR, Part III, subpart II, Section 19 on the VA website at http://www.warms.vba.va.gov/M21_1MR.html#bii

However, I was able to find on my new Lexius CD the same information about reopened claims not being a request for increase ratings at:

VA M21-1, Adjudication Procedures Manual Rewrite M21-1MR,

Part 1 Duty to Assist,

Chapter 1 Duty to Assist,

Section B Handling Claims Under the Veterans Claims Assistance Act (VCAA),

4. Handling Claims to Reopen

This may not seem remarkable to many readers of hadit but let me assure you, given my very limited technical abilities, finding anything on this expensive little CD that I bought along with my VBM is amazing. I am having a hard time using the resources I have which I why I ask people to cite the regulation, a web link, or where they find it in the VBM. Typing a post is one thing, drilling down in the information on the VA website to find specific information or trying to navigate on a CD or a huge manual is very difficult and frustrating for me.

I ask that all the elders and more knowledgeable members of hadit please continue to extend grace and patience to those of us who are trying to understand the labyrinth of VA regulations as they pertain to our cases. What may seem easy to some of you to look up is extremely difficult for some of the rest of us who get bogged down just looking at the index.

Thanks again, Vike17, I look forward to your reply.

ts

Edited May 17, 2007 by tssnave

[Vike17]

tssnave,

"Your point that requesting an increase evaluation is no longer covered under the "re-open claim" definition would seem to need to flow through all of your answers about "reconsiderations", wouldn't it? ie, if a request for an increase is no longer a reopened claim then it stands to reason that as a "new" claim it would NOT go back to the DRO team who rendered the rating decision but would go to the regular raters as a new claim for increase"

Yes, this is correct. I think I stated this in the self-help guide posted at the top of the board (it's pinned). When a veteran requests an increase for an already service-connected disability, it is handled as any other "new" claim, meaning it goes through the normal development with the Pre-Determination Team and then on to the Rating Activity for a decision.

"Can you go the DRO route twice? IOW, if the NOD was for service connection and the DRO granted service connection, can I appeal the rating percentage and request another DRO review based on new and material evidence or would it have to go to the BVA"

Not for the same issue. Like you said, if the first issue was service-connection and the DRO granted it with a 50% evaluation, you can ask for a DRO review of the 50% evaluation. Having said that, the DRO that granted the service-connection and 50% rating cannot do the DRO review of the 50% evaluation, another DRO would be asigned to the case.

"Q3. I read the portion of the reg on DRO review you listed at the bottom and it is unclear to me after reading it if you can use the DRO more than once and if so, is it dependent on how the initial NOD was written (iow, can you only use the DRO to follow out one NOD or can you use the DRO for subsequent NODs?)?"

Like I said above, it depends what the iisues on appeal are. One cannot have a DRO review of the same issue twice.

"Q4. Is it DAV SOP for an initial NOD to just request service connection on a denied claim? It would seem to me that to request service connection AND the highest possible rating would make more sense"

It all depends what the claimant or their rep writes in the NOD. Service-connection and the evaluation are generally two seperate things. First, the decision maker must decide if the issue service-connected and then they decided what evaluation to assign based on the medical records before them. They don't do both at the same time.

Vike 17

[tssnave]

Vike17,

Thanks, again, for taking the time to answer my questions. You have helped me with this issue several times since I've come to the board. In the beginning I did not understand enough of the terms and process to really grasp the information you gave me and now I have a much better handle on things.

It sounds like the NOD should have been only for service connection and if so, then I can NOD the evaluation. I never got a copy of the NOD and will check it out when I get a copy of my C-file, which I've requested. I'll let you know what it said when I find out.

Since I don't trust the regular raters, rather than request an increase in evaluation and make a new claim I will appeal the 50% rating and request DRO review of the rating.

I understand that the actual DRO person who did my 50% won't be able to re-rate the claim but I would rather take my chances with a new DRO than give anything to the regular raters.

Q1. I assume the second DRO will be from the same VARO, correct?

Plus, the DRO reg you quoted earlier states that a DRO can't reduce a rating already given so I shouldn't lose my 50% by going DRO again. I have no idea if that same protection is afforded the vet if it goes to the regular raters as a new claim for increase.

Thanks again for coming back to the board and supporting vets in their VA claims.

Thanks,

ts