Appeals Vs Reconsideration

[rakkwarrior]

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.

[justrluk]

Bronco, you said "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. While I find your posts generally knowledgeable, this statement is in conflict with some other posters. (Possibly Berta) Before I would "bet my entire Retro (sometimes enough money to buy a home) that the VA interpreted it the same way", I think I would file the NOD before the year, just in case":

Rice v. Shinseki (2009) spell it out. its the theory of continuous prosecution, simply stated if you never let the appellate period die, by reopening the claim it never becomes final. see Title 38 C.F.R. 3.160, in regard to 38.C.F.R. 3.156(b), it discusses evidence, well evidence can be a statement to reopen via VAF 21-4138 or medical evidence, or the like. If a claim is continuously pr0secuted the claim does not die, by virtue of not allowing the 1 year (60 days for ECA claims) to expire.

If the claim does not expire for failure to prosecute via reopening at the Rating Board or NOD, then the claim continues, effective dates are governed on the basis of type claim in accordant with 38 C.F.R. 3.400. In general, the date of claim or the date the evidence supports, whichever is later. In regard to claims for increased evaluations, it's the date it becomes factually ascertainable the increase is warranted.

This has been a great conversation thread to read through from top to bottom. I'm in the same boat as Berta: requested reconsideration (have the documents to prove it) and the request was ignored for a year. Within days of the one-year-period expiring, took a day off from work, drove several hours to the regional VARO, hand-delivered the NOD and then saw my VSO to go over my open issues. Now, I'm not sure which will be acted on: the reconsideration or the NOD? My VSO has been keeping an eye on it, but can only do so much.

Another question: if the VARO actually makes a decision based on the request for reconsideration, how would it show in eBenefits? As an administrative review or as action taken on one of the closed claims? Don't know if anyone can answer this (and realize eBenefits has been the subject of other threads) but I'm just trying to connect the dots.

[Berta]

This is the only area in which I differ with Rakk in. His expertise here has been a great valuable asset to us and I am grateful for everything he posts.And I read it over many times.

I will review Rice V Shinseki again to get the guist of his position.I could be wrong as to the NOD.

I based my advice here as to not letting the NOD one year time frame run out due to a BVA decision (which I posted here years ago and will try to find again.

The VA stated the veteran had filed a reconsideration request but had not filed a timely NOD and the claim was denied.

Apparently they either had not considered the reconsideration request at all or it was part of the denial.

The vet appealed to te BVA and had a NSO who also had filed a statement to the Board.

The NSO stated that although the veteran had filed only the reconsideration in the appealate one year NOD period and had NOT filed a NOD- the VSO himself had filed this type of statement with the VA:

'if the reconsideration request does not warrant an award please consider this as a formal Notice of Disagreement for this claimant."

This statement got the veteran a remand as the BVA agreed that the NOD had been filed timely (by the NSO POA and not the veteran) and the earliest effective date of the original claim was preserved by the NSOs actions.

I will sure read Rice very carefully today as maybe it has altered the one year NOD period if a request for reconsideration as been made.

But that BVA decision (the link is here somewhere) sure prompted me to file NOD at last minute on a reconsideration request I filed for my SMC CUE claim-pending since 2004 and supposed to be resolved in April by VA under Nehmer per their last letter.

[Berta]

After a brief electronic visit to the BVA

I still stand strongly on my position that a Request for Reconsideration cannot be accepted as a NOD:

(Rice was decided on May 6, 2009 and this BVA decision was made on July 15 2010 so the basis of Rice did not affect the BVA's position)

In Part:

“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. Therefore, the

Board finds that the record does not include any writing from the

Veteran or his attorney in the one year period following the

receipt of notice of the October 2006 or January 2008 rating

decisions involving disability ratings for depression and a left

leg disability, that could act as a NOD as to those issues.

38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309, 1314

(Fed. Cir. 2002). Accordingly, a remand by the Board is not

required. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999)”

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

Citation Nr: 1026468

Decision Date: 07/15/10 Archive Date: 07/28/10

DOCKET NO. 07-34 817A

[Berta]

to add-I just re read Rice V SHinseki-

Rice's NODs had been filed timely and that was not an issue in Rice.

He had however filed a Motion for Reconsideration with the BVA.

This type of BVA reconsideration is not comparable in any way at all with a Reconsideration Request at the VARO level.

Nothing has altered the regs requiring that a timely NOD must be filed with the AOJ RO within one year after a VARO denial.

Whether a recon request was filed or not.

[Berta]

Here is another Post-Rice V Shinseki BVA decision to support my postion:

http://www4.va.gov/vetapp10/files2/1012712.txt

In Part:

CONCLUSIONS OF LAW

1. The Veteran's March 1999 request for the RO to

reconsider the rating decision of January 1999 did not

constitute a timely notice of disagreement (38 U.S.C.A. §

7105(b)(1) (2009); 38 C.F.R. §§ 20.201, 20.300 (2009)) so

that decision was final. 38 C.F.R. §§ 20.302, 20.1103

(2009)."

I think the subject of NODs and Reconsideration requests should be gone over in the main forum again.

[rakkwarrior]

Rice's request in that instance, for reconsideration WAS NOT an NOD, it was a reopened claim...you cannot have it both ways...and his attorney (via flimsy argument) tried to have the Board consider issues which were not within their appellate jurisdiction, that the issue was not continuously prosecuted...i.e. a later NOD was not filed on the issues which were reconsidered, after the appellate period had become FINAL for FAILURE to prosecute.

Edited March 31, 2011 by rakkwarrior