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bobbells

Difference Between Nod And Reconsideration/

Question

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A NOD must be filed within one year of the decision.

A Reconsideration Request needs to have new and material evidence, that was not considered in the decision. It cannot be redundant or cumulative to whatever they already listed s evidence in the denial.

This type of request should be filed ASAP and it does NOT stop the NOD clock.

Personal example:

I filed for reconsideration regarding CUE claim within days after receipt of their denial. None of my legal evidence was acknowledged or considered. I filed it all again asking for reconsideration as they never mentioned even getting any of it.

I marked my calendar and then since they had not acted on the request-I filed a NOD with only one week left to insure it was timely.

Sometimes a reconsideration request will get their attention prior to the day the NOD is due and they will act on it.

SOmetimes they wont respond to it at all.

If a vet gets an IMO too late for a decision and gets a denial,the IMO is enough to warrant a reconsideration of the denied decision (if they get to it before the NOD clock runs out)

In other respects, the request could be based on something else significant that they have overlooked such as a SSDI award or private medical records that they are aware of but never considered.

It could be a buddy statement that maybe the VCAA letter suggested but then they totally ignored when they prepared the decision.

It may or may not go faster than the NOD would. Put Attention To on the request and on the envelope over the VARO address and then put the initials that appear with the RO numeric in the upper right hand corner of the decision.

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"There is no reason to NOD an issue which you have previously requested to reopen the claim under those provisions as previously noted, typicially, a time it itakes for a claim to be decided is much less than one which is pending under appeal. It's a logisitics game. The VARO's have X amount of Rating Specialists, and X amount of appeals staff. Often if not always, Rating Teams are more heavily staffed than appeals, thus the reason for appeals backlogs. I included this EXAMPLE as a means of alowing these type of claims not to be confused with NOD's and it is easily recognized as a CLAIM by VARO staff."

I disagree-if you mean using a reconsideration request in place of a NOD -if the NOD deadline is running close and the VA has not acted on the Reconsideration request- then a NOD MUST be filed or the claimant will lose their EED.

The BVA bares this point out.

Somewhere here years ago I posted a BVA decision-the VA had denied and said a NOD was not timely filed and they had not acted on a reconsideration request from the veteran.

The BVA found,however, that the veteran's vet rep had filed a statement saying that VA should consider the request for Reconsideration

as a formal NOD disagreeing with the decision if the Reconsideration Request was not resolved to the vet's favor.

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If have misunderstood you I apologize but as I understood your post you are saying a Reconsideration Request appears to alleviate the need for a NOD.

If so-you are wrong-

If the VA fails to act upon a request for reconsideration (they did this to me regarding one of my claims filed in 2004 ) the NOD deadline was days away so I filed a formal NOD.

It was obvious to me that since VA had failed to regard ANY of my legal evidence for years at that point-they were not goping to honor the request at all-hoping I would forget to file the formal NOD.

This all regarded a CUE claim for accrued SMC. I did NOT lose my appealate rights and the claim has become a Nehmer issue.

I based what I have stated here for years on VA case law and the many examples at the BVA web site:

http://www4.va.gov/vetapp10/files3/1026468.txt

“With the above criteria in mind, the Board finds that the

Veteran's requests for reconsideration cannot act as NODs to

their respective rating decisions because they do not "include

terms that can be reasonably construed as a desire for appellate

review." The Veteran, in his October 2006, April 2008 and

August 2008 submissions, specifically stated that he wanted the

RO to reconsider the rating decisions of October 2006, January

2008 and May 2008. Specifically, in his April 2008 request, the

Veteran plainly requested that the RO not process his request as

an NOD. He stated that he wanted a reconsideration based upon

new evidence. The Veteran expressed the same sentiment in his

August 2008 submission. In contrast, in the case of the issues

currently on appeal before the Board, the Veteran filed a notice

of disagreement in July 2006, specifically stating that he wanted

to file a notice of disagreement with the rating decision

currently under review.

The submissions discussed above plainly show that the Veteran has

actual knowledge of the differences between notices of

disagreement and requests for reconsideration.”

http://www4.va.gov/vetapp10/files3/1026468.txt

http://www4.va.gov/vetapp03/files/0334996.txt (along same lines as above re: NOD)

Edited by Berta

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