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Appeals Vs Reconsideration

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rakkwarrior

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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As Carlie has pointed out there is a difference between a MFR and a Request for Reconsideration, mainly on the level of appealate review.

The NOD is supposed to give the BVA juristdiction to review the RO decision. The Veteran has to do other things to perfect his appeal. Just one NOD wont do. He must then respond to the SOC and file an I 9, with the Ro's assistance.

But the Request for Reconsideration does not seem to accelerate the appeal level..it stays at the RO level, and the Vet submits new evidence. I dont think the RFR gives the BVA the authority to review..only the NOD does that.

I agree with Berta that the SAFEST way is to file a request for reconsideration, AND file a NOD before the year.

I also agree that RAK Warrior is very knowledgeable, and has posted helpful information. But I also know the VA is extremely UNFORGIVING about failure to file a NOD on time...no matter what.

I think there is a chance that both are right. In other words...when the Veteran files for reconsideration...the claim becomes "continiously prosecuted" as Rak said. But, I dont think this "tolls" the 1 year deadline to file a NOD. However, Henderson Shinseki may change that.

This supreme court case "revived" Equitable tolling, since cases before it seemed to have killed it. Equitable tolling seems to be the only instance when the 1 year appeal period is extended. Now, if the Veteran files for reconsideration...and the VA makes no decision on it for a year...the Veteran may be able to ask for "equitable tolling " the one year period...that is the VA's failure to act on the reconsideration request timely MAY "toll" the one year appeal period. Previously, before Henderson, the courts had ruled that the one year appeal period was jurisdictional, and the courts had no right to even entertain cases which were not timely appealed. Now, however, post Henderson, the Veteran may ask for equitable tolling.

For me, tho, I dont want to get into an arguing match..its easier to just file the NOD on time no matter what. JMHO.

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  • HadIt.com Elder

Never take chances with the VA. Never ever makes sure that you comply with everything they want or say that they need.

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Thanks Pete- I think we kicked this topic around long enough.

I have one more citation for my position but it is page 917 of the 2010 Edition of the VBM by NVLSP and just reiterates

the point I made anyhow as to timely filing of a NOD whether a vet rep initiates a recon request or not.

They don't even mentioned a claimant filing this type of request.

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