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rakkwarrior

Appeals Vs Reconsideration

Question

Often veterans become upset with a VA Rating Decision, see the appellate rights and opt for filing a Notice of Disagreement (NOD). This will typically invoke a long and arduous appeals process. Appeals within the VA system often last 2-6 years, not including BVA remands.

A much easier way to continiously prosecute claims is by filing for reconsideration/readjudication of a prior VA decision. Typically, claimants have one year from the date of notification of a VA decision to either file an appeal or request reconsideration of the prior decision with new and material evidence. This is evidence which has not previously been considered and may serve to overturn prior decisions.

If new and material evidence is received within the appellate period for any decision which has not become final the provisions of 38 C.F.R. 3.400(q) would be for application whereas the Court held, "VA must consider any new and material evidence received during the one-year appeal period following an RO decision as having been filed in connection with the claim which was pending at the beginning of the appeal period." See also Rice v. Shinseki, 22 Vet.App. 477 (2009).

Generally claimant's are unaware of the evidence required for a favorable decision, however, a proper VA Rating Decision (VARD) should provide adequate reasons and basis for the denial of any condition. Within a VARD there should be discussion of evidence considered in the service medical records, the evidence submitted, and findings of any VA examination to include rationale of the examiner as to why or why not a nexus opinion is given in regard to service connection.

Equally, the most common reason for a denial is not for lack of in-service treatment, or evidence of a current disability, but the medical opinion relating that condition to service.

Generally service connection requires (1) evidence of an in-service, injury, disease, or event, whic was caused, incurred or aggravated in the line of duty, (2) a current chronic or disabling condition, and (3) a competent medical opinion relating the two to service.

Of the claimant can overcome a VA medical opinion with a competent medical opinion, which is as equally thorough or greater in probative value than that of a VA examiner, then the claim should be reconsidered and granted. This can be accomplished by asking for reconsideration of the prior decision, and effective dates should be assigned accordingly. This technique can win cases in a much faster fashion than electing to file an appeal, which in the send will requires the same type of evidence for a claimant to prevail.

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Welcome to Hadit. In a perfect world the VA would follow its own rules. Like it or not if you don't ask specifically and show VA why the chances of winning in early stages are not so good.

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I certainly agree that a reconsider might resolve a claims issues faster than a NOD.

But that depends on whether the VA will act on the request within the NOD time frame.

I feel everyone filing for Reconsideration should mark their calendar-as the year can slip by fast-to make sure the NOD is filed on time.

I filed for reconsideration and had to send them my NOD within days of the NOD year deadline as they had ignored the request.

Also if the VA made a CUE a veteran can ask them to CUE themselves during the appellate period.But that too still means the NOD clock is ticking.

New and material evidence that would warrant a reconsideration cannot be redundant or cumulative of what they already have.

That evidence could include anything they did not list as evidence on the SOC.

If they don't list it as evidence and opine on it in the SOC, to me it means they ignored it or lost it and it might be critical to the claim.

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I understand there is long back log-especially those claims for reconsideration. Do you have any insight as to the new length of time once a reconsideration claim is with the rating board what the new time frame is? It used to be up to 28 days. Thank you. And again, welcome to this forum.

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Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160.

In my VARO appeals take 2 years for De Novo or Traditional Review, the latter of which is merely a review if the prior decision and is IMHO useless. Reopened claims take 6-9 months currently.

We coomunicate with our VA counterparts to gain an understanding of current workflow, and actively work to streamline our clients claims to be "Ready to Rate". We also use the FDC claim process to expedite new claims and claims for reconsideration with additional evidence.

***FDC claims will not work for issues which have become final and require N&ME to be considered formally reopened, this is due to VCAA notification requirements.***

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Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160.

In my VARO appeals take 2 years for De Novo or Traditional Review, the latter of which is merely a review if the prior decision and is IMHO useless. Reopened claims take 6-9 months currently.

We coomunicate with our VA counterparts to gain an understanding of current workflow, and actively work to streamline our clients claims to be "Ready to Rate". We also use the FDC claim process to expedite new claims and claims for reconsideration with additional evidence.

***FDC claims will not work for issues which have become final and require N&ME to be considered formally reopened, this is due to VCAA notification requirements.***

Re-opened claims-that would apply to clams re-opened for reconsideration? Mine was placed for reconsideration due to missed medical information. ( in AZ) From what I understand from your post I'll expect to get a decision within 6-9 months, not the normal up to 28 days that was previously the norm before the agent orange claims opened up. I had my reconsideration claim sent in October 2010. It went to the rating board in November. Does the 6-9 months commence from the date refiled, or the date once it hits the rating board. Thanks

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