Reconsideration

[Philip Rogers]

There's been recent talk about a "reconsideration" at the VARO level. I, for one, disagree with the thought of it, at the VARO(RO) level. I cannot find anywhere where it's allowed/considered. Please correct me if I'm wrong or have missed something. I do know, and I say that because a wonderful poster here, the late Alex Humphrey, Esq., 5th SFGA, 1964-65, and a great friend to veterans, here, would always recommend that any reconsideration be avoided because, if it were done, it would be routinely rubber stamped, by the same person, although illegal, as valid and if disagreed with sent to "appeal hell"(my wording), thus causing a 3-5 yr delay. I only regret not meeting Alex, in person! jmo

pr

Edited April 16, 2011 by Philip Rogers

[Berta]

I just deleted a long response I made-

maybe this will do

In 2006 I filed for a Reconsideration of a denial of my CUE claim.

The VARO could have easily written back to me that there is no basis in 38 USC/CFR for a claimant sending them a reconsideration request.

And they could have given me a citation from 38 USC to prove that is true.

But they didnt.They couldn't do that.

There is no reg to prevent a veteran or widow/widower from asking them to reconsider.The claimant needs to have Probative evidence however.

I got many responses to the request ,still failing to consider my legal evidence.

Unlike something suggested in the forum here regarding this subject-I filed a timely NOD when I realized the VA was simply playing games and would not award the Claim as my NOD clock hopefully ticked away.

But I filed a timely NOD with mere days left and it was acknowledged.

I filed a I-9 (one of the best I ever prepared)and then was advised the claim was going to the BVA.I was elated.

BVA can read.

It never went .It is now in Phila with Nehmer.

If my AO IHD claim should fail (I dont expect it to)

they still have the CUE to deal with.

If I had done what appeared to be suggested here in the other forum and NOT filed a timely NOD-my CUE claim would be in the crapper.

I feel we can use the regulations to control the VA just as they control our claims.And along with evidence ,the regs themselves are valuable weapons in the VA's war of the words.

The claim I won last year could have easily been denied with a reg that my former rep said they would use against me.He found the reg in my file attached to an older denied claim.They had used it in a past claim I had in attempt to deny in 1995 I think.

But he didnt read my 2003 claim well.

I had already used the reg against them in my new claim.I stated they could not deny the claim on the basis of that specific reg and told them why in my initial filing.They never brought that regulation up again.

[carlie]

There's been recent talk about a "reconsideration" at the VARO level. I, for one, disagree with the thought of it, at the VARO(RO) level. I cannot find anywhere where it's allowed/considered. Please correct me if I'm wrong or have missed something. I do know, and I say that because a wonderful poster here, the late Alex Humphrey, Esq., 5th SFGA, 1964-65, and a great friend to veterans, here, would always recommend that any reconsideration be avoided because, if it were done, it would be routinely rubber stamped, by the same person, although illegal, as valid and if disagreed with sent to "appeal hell"(my wording), thus causing a 3-5 yr delay. I only regret not meeting Alex, in person! jmo

pr

pr,

I've done some more digging and I still feel that a request for reconsideration is

allowed at the RO level.

Now it may wind up being a rubber stamp of the prior denial, but IMO that's also true

with filing a NOD and getting a DRO De Novo Review.

I've seen most of these to also be pretty much rubber stamped denials.

I do state and agree 100 percent - that while regardless of anything - the claimant has only

the one year time frame to file a NOD. So, if they have not gotten any response on a

request for reconsideration from the RO - file a timely NOD before the one year deadline,as they will certainly be unforgiving on this issue.

I do state that IF the claimant wants to file a request for reconsideration at the RO level,that they must also submit some additional evidence/information, that would fulfill the criteria for a grant of the claim/issues.

Here are some BVA cases I've located - I am aware that BVA does not set any precedence.

Let me know what you think.

http://www.va.gov/ve...es4/0832647.txt

In the Board's view, the letter requests

assistance from the member of Congress in an effort to compel

the RO to provide more sensitive medical examinations of his

disabilities and to reconsider several of its decisions. The

Board cannot identify any terms in the March 2004 letter to

Congress which convey a desire to appeal issues to the Board.

Seeking reconsideration of RO determinations is not

interchangeable with expressing a desire to appeal to the

Board. While special wording is not required, a notice of

disagreement must be in terms that can be reasonably

construed as not only a disagreement with a determination,

but also a desire for appellate review. See 38 C.F.R.

§ 20.201. The March 2004 letter to Congress presents no

terms expressing a desire for appellate review. The Board

further observes, in passing, that the RO's internal

memorandum concerning the Congressional inquiry contains an

indication that clarification was sought regarding the

veteran's intentions; it was determined, with emphasis, that

"Vet is requesting RECONSIDERATION of claim decision."

An RO internal memorandum concerning a Congressional inquiry does indeed

contain a stamp with the words "Notice of Disagreement"

upon it; however, it is expressly noted that the RO

understood that the veteran was "appealing reduction of 10%

for each gynecomastia scars." There is no mention of a

notice of disagreement regarding bilateral foot disability

and, rather, there is text emphasizing that "Vet is

requesting RECONSIDERATION of claim decision...." The Board

notes that the RO recognizing a request to reconsider an RO

decision is a distinct matter from the RO receiving a notice

of disagreement seeking to appeal an RO decision to the

Board. Accordingly, the RO subsequently issued a statement

of the case for the gynecomastia issues appealed, while a new

RO rating decision was issued to once again address the

veteran's disability ratings for a bilateral foot disability

in June 2004.

In the Board's view, the letter requests assistance from the member of

Congress in an effort to compel the RO to provide more

sensitive medical examinations of his disabilities and to

reconsider past decisions. The Board cannot identify any

terms in the March 2004 letter to Congress which convey a

desire to appeal issues to the Board. Seeking

reconsideration of RO determinations is not interchangeable

with expressing a desire to appeal to the Board. While

special wording is not required, a notice of disagreement

must be in terms that can be reasonably construed as not only

a disagreement with a determination, but also a desire for

appellate review. See 38 C.F.R. § 20.201. The March 2004

letter to Congress presents no terms expressing a desire for

appellate review.

http://www.va.gov/ve...es2/0815582.txt

Manlincon considerations

The June 2002 rating decision on appeal also denied the

veteran service connection for tinnitus. In an August 2002

statement, the veteran's representative indicated that the

veteran contacted their office in regard to the June 2002

decision that denied service connection for PTSD and tinnitus

"to express disagreement and request reconsideration." The

RO has not, however, issued a Statement of the Case (SOC)

with respect to the tinnitus issue. The case must therefore

be remanded so that a SOC regarding the issue of service

connection for tinnitus can be issued. See Manlincon v.

West, 12 Vet. App. 238 (1999) (holding that where a NOD is

filed, but a SOC has not been issued, the Board must remand

the claim for issuance of a SOC).

http://www.va.gov/ve...es3/0728193.txt

This appeal comes before the Board of Veterans' Appeals

(Board) from a March 1998 rating decision of the Department

of Veterans Affairs (VA) Regional Office (RO) that denied

service connection for stomach pain due to an undiagnosed

illness. On reconsideration, the RO denied service connection

in September 1998.

The veteran testified before the Board sitting at the RO in

February 2002.

In December 2003, the Board remanded the claim for further

development.

In April 2006, the Board again remanded this matter in light

of his request to testify at another Board hearing because

the Veterans Law Judge who had conducted the February 2002

hearing was no longer employed by the Board; that hearing was

held before the undersigned Acting Veterans Law Judge in

February 2007.

FINDINGS OF FACT

With resolution of all reasonable doubt in the veteran's

favor, gastritis has its onset during service.

http://www.va.gov/ve...es1/0702520.txt

Thereafter, in August 1996, the veteran's representative

filed with the RO a memorandum concerning the July 1996

rating decision. It was requested that the RO obtain VA

medical records and provide the veteran with a VA

examination, to include an opinion as to whether the

veteran's low back and right hip conditions were secondary to

pes planus. The representative also indicated that if, upon

reconsideration, the RO rendered an unfavorable decision,

that the memorandum should be considered a formal NOD and

request for issuance of a SOC.

[Guest]

http://www.va.gov/va.../pdf/VA4107.pdf

VA form 4107 (YOUR RIGHTS TO APPEAL OUR DECISION) talks about filing a NOD and talks about submitting additional evidence to VA and VA would consider that new/additional evidence. It does not say "reconsider" but it does say that VA will consider the evidence and let the veteran know whether it changes their decision. This facts sheet is normally attached to every rating decision that is processed by the VARO. This letter is given to the veteran prior to his or her claim going to the BOARD

[Philip Rogers]

Okay, Carlie & Berta, whatever you say. I'm not trying to argue w/either of you. I was not so much concerned w/whether it is allowed, as I was that it's probably a waste of time. Over the past 21 yrs, of my dealing w/the VARO's, I've found that most, if not all, raters, assume the previous rater did their job properly and almost never review a file prior to the previous decision. So, if something is missed, it continues to be missed. This even happens w/DRO's sometimes. Since they are not penalized for their errors what would be their reason to reconsider a claim???

Raters are evaluated on the basis of claims completed, not claims completed "properly." To me, it makes no sense to properly reconsider a claim when it can be just rubber stamped and sent on and hopefully the BVA will catch the error and remand it but, by then, it's been delayed 2-5 yrs. If you'd like I can delete my post. jmo

pr

Also, if it's such a great idea don't you think the VBM would recommend it??? just sayin'

Edited April 16, 2011 by Philip Rogers

[MikeS]

Hi all:

Since 'm the one who asked about reconsideration vs NOD, let me tell you how I am dealing with it.

First, I submitted a "express revocation" of my participation in the ECA at the Philly VAROIC in order to retain my right to one year time limit for an NOD instead of the 60 day limit as a ECA participant.

Then, I began the process of having a Progress Report "explained" in writing to the VAROIC to show that I am housebound. My VA PTSD Doc innocently made a grammatical error in one Progress Report and that cost me an approval for SMC Housebound.

Finally, once I have my VA PTSD Doc's correction in my hands I will file an NOD simply because I just don't trust going the Reconsideration route. (aka a real bad feeling in my gut)

Word of warning: NEVER... EVER....EVER waive any of your rights for the "promise" of a "quicker claim process". (just my biased opinion)

Thank you all,

Mike S.

[carlie]

Well , if I should find myself in this position down the road

I believe this is how I will handle it.

To VA:

In response to your rating decision dated XX/XX/XXXX that denied/lowballed SC for XXXX.

Please consider this as my NOD with the decision above.

I agree that with only the evidence listed in the decision, the claim was not able to be granted or the higher

percentage awarded.

I am now submitting additional updated medical evidence/information (please see attached 12 pages) and contend

that should the RO apply this additional evidence/information for reconsideration of the prior denial/lowball,

my claim issues will be shown as fully supported to merit a complete grant of benefits sought.

If during reconsideration of this additional evidence the prior decision remains denied/lowballed then

please also consider this submission to contain my request for an in person Hearing with a

Decision Review Officer, to be scheduled at your earliest convenience.

I am in hopes these issues can have a timely resolve and not have to continue with

inefficient piece meal adjudication, which is neither beneficial to either the valuable resources of the

RO nor myself.

Please note: The Courts have concluded that VA disability compensation falls under the category of property rights.