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Reconsideration Claim

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babyray

Question

Do I have to submit new and material evidence when I file a reconsideration claim?

Babyray

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  • HadIt.com Elder

New and material evidence is required to re-open a closed claim.

As far as reconsideration, the decision issued is being reconsidered. You can submit new evidence but you should not be required to do so.

J

Edited by jbasser

A Veteran is a person who served this country. Treat them with respect.

A Disabled Veteran is a person who served this country and bears the scars of that service regardless of when or where they served.

Treat them with the upmost respect. I do. Rejection is not a sign of failure. Failure is not an option, Medical opinions and evidence wins claims. Trust in others is a virtue but you take the T out of Trust and you are left with Rust so be wise about who you are dealing with.

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I have borrowed this information from a past hadit member

that is very knowledgable on the VA Claims process.

carlie

"A request for reconsideration MUST be accompanied by "new" evidence. You cannot request to have a prior decision reconcidered just because you think they missed something; this is what the Notice of Disagreement is for!

Vike 17 Down below is a run down on how a request for reconsideration is worked at VA (Thank to "Cruiser" as some of this material is derived from a post of his awhile back.);

A request for Reconsideration is where a claimant has received a rating decision and may disagree with that decision, but has "new" evidence the Rating activity was unaware of at the time of their decision, and may think that the "new" evidence might result in a more favorable decision than the prior one.

In this case the claimant has the one year appeals period to send in

the "new" evidence and request that the Rating Activity "Reconsider" their previous decision. The claims folder would then go back to the Rating activity to be reconsidered and the RVSR would send out a new rating decision where the "new" evidence is considered and an new decision rendered.

One thing to keep in mind is one MUST submit "new" evidence in order for the VA to "reconsider" their previous decision. Another reason one might consider the "reconsideration" approach is simply because a request for reconsideration generally goes faster then an appeal because the claims folder goes back to the RVSR and is worked according to the date of the request for re-consideration.

If the request for reconsideration warrants a favorable decision, the effective date may be the date of the original claim, depending what the evidence submitted dictates . A request for reconsideration is simply "re-opening" a claim within the one year appeals period [(see 38 CFR, §3.400(q) for effective dates concerning reconsiderations)

Another topic concerning "reconsideration" is whether or not one should file a Notice of Disagreement (NOD) if the VA hasn't yet rendered a decision before the one year appeals period has expired.

If one sends in "new" evidence within the one year appeals period and request a "reconsideration" of VA's prior decision, they better be 100% certain it will change VA's prior decision; If VA accepts it as a "Reconsideration" (which as stated before is a "Re-opened" claim),

they must follow the rules and regulations for a reopened claim and render a formal decision unless one withdraw the claim prior to a decision being made.

If they do render a formal decision they must notify you of this decision which means that they cannot then turn around and accept the request to reopen as a Notice of Disagreement because it is dated and received prior to the latest decision on this issue.

The NOD must be received AFTER you have been notified of the latest decision on that claim.

Reopened claims and NODs are not worked by the same people nor by the same administrative procedures.

If one requests a "reconsideration" with the one year appeals period and then file a NOD before the one year elapses because VA hasn't made a decision on the "new" evidence, then one is asking that VA go through all the administrative procedures for a "reopened" claim up to and including a review by a Rating Specialist and then if the claim cannot be granted to just stop without a formal decision and send it back out to start reprocessing as an NOD.

This would create an Administrative nightmare and simply cannot be done.

If after requesting a "re-opening" of the claim you then file an NOD, the "re-opened" claim is no longer valid and whatever evidence you submitted with it will be considered as part of the NOD.

As soon as the NOD is received on that particular issue, whatever it is, it MUST be worked under the appeal procedures.

One cannot have both a reopened claim and an NOD on the same issue at the same time.

In short, one must keep an eye on the expiration date for the appeal period so you could convert the "reopened" claim to a Notice of Disagreement (NOD) in the event a decision was not rendered before the appeal period expired.

If you disagree with the decision and you aren't 100% certain that the new evidence will result in a grant, you cannot let that original appeal period run out.

If the reopened claim is not granted and you don't submit an NOD within the appeal period for the first decision, you have lost the date of claim on that decision as a potential effective date.

There are a limited number of situations where one should "re-open" the claim instead of filing an NOD, but these are few and far between and one must really, really know what they're doing when they make the decision to do this.

The overwhelming majority of cases a Notice of Disagreement is the best path to take.

Vike 17"

Carlie passed away in November 2015 she is missed.

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New and material evidence is required to re-open a closed claim.

As far as reconsideration, the decision issued is being reconsidered. You can submit new evidence but you should not be required to do so.

J

On my recon, I am asking them to look at my C&P exam in the c-file again because the VA doc progress notes says that my MDD is deficient in most areas. The rating should have been 70% but they gave me 10%. The evidence is in the file but it was low balled, so I am asking them to reconsider their decision, there is no need for N&M evidence.Thx.

babyray

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On my recon, I am asking them to look at my C&P exam in the c-file again because the VA doc progress notes says that my MDD is deficient in most areas. The rating should have been 70% but they gave me 10%. The evidence is in the file but it was low balled, so I am asking them to reconsider their decision, there is no need for N&M evidence.Thx.

babyray

BR -

In VBA language reconsideration does not have the same meaning as just the plain

English language.

If your do not have anything new to submit then you do not file for a reconsideration.

You would file a Notice of Disagreement (NOD) with the rating decision

and state that according to the regs you feel the decision maker

did not apply the highest percentage level of compensation allowed,

in relation to the medical evidence that supports a rating of XX percent,

as shown in the C&P dated XX/XX/XXXX.

I went over the rating decision you uploaded and feel a NOD would be the approach to take.

But ultimately it's always your decision.

VSO's are not always right.

jmho,

carlie

Carlie passed away in November 2015 she is missed.

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  • HadIt.com Elder

Do a 21-4138, copy the regs concerning your rating and the criteria they should have used.

If they lowball a claim with no good reason this is not properl;y applying the title 38 usc 4.71. ( This could be a cue in the making)

In reality they most likely know this and they are just giving a hard time in order to draw it out over time. in order to make you wait for a DRO review or a BVA hearing

There is no other explanation.

J

A Veteran is a person who served this country. Treat them with respect.

A Disabled Veteran is a person who served this country and bears the scars of that service regardless of when or where they served.

Treat them with the upmost respect. I do. Rejection is not a sign of failure. Failure is not an option, Medical opinions and evidence wins claims. Trust in others is a virtue but you take the T out of Trust and you are left with Rust so be wise about who you are dealing with.

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