"requesting A Reconsideration" Vs Going Straight To An Appeal--semper Fi

[DC1775]

Greetings: (This is a long and confusing posting...sorry in advance...I would appreciate any help)

I have a few questions that I'd appreciate any advice that anyone could provide. I'll give a quick history:

-Applied for benefits for s/c bipolar dis. in 2002.

-VA came back in 2003 and denied my claim, citing 'records were silent'.

After this, I talked to the VA a few times and the reps that I talked to said that my claim was still being worked on -- but I didn't not file a NOD or take any action, but talk to various reps on the 800 number. Turned out to be a big mistake.

-In 2004, I filed a claim again -- it was denied. Despite evidence from current doctors *va and private* along with a QTC exam where the doc. said that my condition was service connected.

-In 2005, I filed a claim and the DAV helped me this time. During this time, I was able to secure letters from doctors that treated me while I was in the military along with an appointment log that shows every time I went to the mental health clinic.

TIME PASSED...VA KEPT ASKING FOR SAME INFO OVER AND OVER AND OVER.

-In 2008, after all this evidence was submitted, and after 2 more C&P exams by a VA doc -- both times said it was a s/c disability. YET AGAIN..THE VA DENIED IT. They admitted that I was diagnosed and treated...but went on to say that it was prior to my mil. service..and that it started at age 19. I was 17 when I joined...the VA simply didn't pay attention to my dates of service and DOB. (DUMB MISTAKE)

Finally, the VA granted me a s/c disability and rated me at 30% dating back to 2005. My DAV rep said that even though I didn't file a NOD in 2002 -- I could still ask it to be backdated to 2002, since they used 'new and material evidence'. ***my question here is: how accurate is his answer..what's the best way to proceed?

I also want to challenge the 30% rating. The ratings officer cited dates in my med. records from the VA docs, that were on 'up-good' days -- and sometimes the records from a couple weeks before or after..sometimes even days...showed that there were more 'down-bad' days. It's like they were 'cherry picked' dates to make my dis. seem less severe. BUT I've seen a private doc. once a week since 2002 -- who will write a letter disputing the times that the ratings officer cited in the letter -- along with me pointing out the 'bad' dates close to the 'good' dates cited in the SOC. I can also point out that the 'bad' days and notes from those appts. out number the 'good' days by at least 70% of the time. My question here is: would i submit this as 'new and material'?

ONE LAST QUESTION:

I read something about asking for a claim to be 'reconsidered' verses filing an appeal. Is a 'reconsideration' an option that I have or do I have to file an appeal? If it is an option..should I try that or go straight to the appeal?

For anyone that has read this entire posting and can provide any facts or advice...anything at all...I greatly appreciate it. SEMPER FI

[Berta]

Welcome here Marine

A Reconsideration Request does NOT stop the NOD clock- meaning if VA fails to act on the reconsideration rquest-you must maerk your calendar ands file the NOD before the year NOD deadline is up.

Send with the Request (there should be a format here at hadir for this type of claim-I ave one pending myself)

any evidence they did not consider and should have considered and any other evidence that is pertinent to the decision.

I appears thatr the decision you got has appellate rights for your to both question the % rating as well as the EED (earliest effective date)

"Finally, the VA granted me a s/c disability and rated me at 30% dating back to 2005. My DAV rep said that even though I didn't file a NOD in 2002 -- I could still ask it to be backdated to 2002, since they used 'new and material evidence'. ***my question here is: how accurate is his answer..what's the best way to proceed?"

He is on the ball here -however did he suggest filing a CUE claim? (Claim of Clear and Unmistakable Error)Or using the regs regarding SMRs in a different way?

WOuld you feel that you have "newly discovered service records?" -that is-military service records the VA failed to acknowledge and address at all in past denials?

The template for Reconsideration should be here at hadit as well as the newly discovered SMR reg- I will try to find it and post it.

[Berta]

BTW -your post makes perfect sense to me-

this is the revision of 38 CFR that I believe your vet rep is referring to-

so not a CUE claim but a Reconsideration on the EED-

I am rethinking- that maybe he would agree to file Reconsideration on the Decision and the EED and use this revised reg as evidence (along with the SMRS)

“Another exception regards reconsideration of decisions on the

basis of newly discovered service department records. It is

noted that during the pendency of the appeal, revisions were

made to 38 C.F.R. §§ 3.156© and 3.400(q), effective on

October 6, 2006. 38 C.F.R. § 3.156© was revised to

establish clearer rules regarding reconsideration of

decisions on the basis of newly discovered service department

records. The substance of 38 C.F.R. § 3.400(q)(2) is now

included in the revised § 3.156©. Prior to the revision,

38 C.F.R. § 3.400(q)(2) governed the effective date of

benefits awarded when VA reconsidered a claim based on newly

discovered service department records. The prior 38 C.F.R. §

3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2)

without substantive change. See 70 Fed. Reg. 35388 (2005).

The Board therefore finds there is no prejudice to the

veteran in considering the revised 38 C.F.R. § 3.156© prior

to giving the RO an opportunity to review the appeal. 38

C.F.R. § 19.31.”

Revised 3.156 (38 CFR)

-----

I used my own Reconsideration Request here as a template and added at some points to it -remarks for others to understand how I filed this:

“Department of Veterans Affairs JulyRegional Office Re: 307/21/FAL

130 South Elmwood Ave

Suite 601

Buffalo, N. Y. 14202-2478

This is a Request for RECONSIDERATION of the decision made on June 30, 2006 regarding two CUE claims I have filed.

This is also a Request for SUBPEONA of certain VA records, as described within

Subpoena authority of Directors of ROs, 38 USC 5711, 38 C.F.R. 2.2 (a)(2003) if needed .

The denial letter I received regarding these two CUE issues is deficient and it overlooks documented fact and VA case law and regulations, as pertaining to CUE issues, as well as the documentation and legal evidence within the c file.

“The decisions to deny special monthly compensation is not considered to have been clearly and unmistakably erroneous because the decision was properly based on the available evidence.”

WRONG.

I have enclosed again copies of the Two decision I have filed these CUES on as well as the following established VA Case Law and regulations pertaining to this issue.”

-=-----

(I then enclosed and also scanned into this request- link to and narrative in 4 BVA decisions as to the interpretation of the same regs and laws I was using, also M21-1 as to the regs they broke, a General Counsel Pres Op re: exactly the same regs, a letter from CHAMPVA quoting the VA, and some other stuff-)

(The “available evidence” I also added was clearly in VA’s constructive possession both at the RO as well as the OGC in DC at time the alledged CUE decision was made.

(Bell V. Derwinski) I think they were trying to raise Bell here- it wont work.)

I added I respectfully request proper SMC accrued award of my husband’s Section 1151 disabilities.

He was 100% SC for PTSD as well as well over 100% under Section 1151 (Nehmer too in my current claim)

And I asked them for about 69,000 in accrued SMC due the vet in his lifetime.SMC R-1- and told them SMC S is obvious but I don’t want the S award.

(His medical evidence warrants a higher level of SMC)

And I through in the actual reg for this- (used a page from the VBM)

It is the established policy of the VA to award accrued benefits to a survivor regarding any type of claim whatsoever they accrued on by medical evidence-prior to the veteran’s death.

Hope this helps someone-

Recon Request-only for obvious error during claims process-

The new evidence is actually the proof of the error but send them anything you got.

Watch the NOD time frame-so that if they do not award on the Recon-you file the NOD in time-within first year after the decision.

[Berta]

One thing there I need to stress-that was an old post I made here-

Accrued benefits are due and payable to survivors if their accrued benefits claim succeeds AND is filed within one year after death of the veteran.

If the accrued benefit claim ( a claim that continues in the survivors name regarding any pending SC claims the vet had filed in their lifetime)is not filed within that year and supported consistently by evidence,there is no legal claim for accrued benefits.