Reconsideration

[cooter]

Today I was listening to this weeks SRV podcast and heard something real interesting. Carrey, who's employed with B&M LLC VA Attorney's I believe. mentioned she has never, and I repeat never, has heard any award granted on a "Motion for Reconsideration"

I personly take that hard to believe. But then again, I'm not a VA Lawyer. Anyone out there know or heard differently?

[sharon]

Have had several Reconsideration granted. In order to avail you must have medical evidence that will tilt the scale in your favor.

[Berta]

A "Motion" for Reconsideration can only be filed with the BVA asking the BVA to reconsider a decision.The regulations involving this type of" Motion" are found at the BVA.

The Reconsideration requests we see here at hadit involve asking a VARO to reconsider their decision.

Sharon is right- you need to give VA something that they either had in the record that was probative and they completely overlooked it or there is recent medical evidence that would definitely warrant a reconsideration.

Also the regs themselves might warrant reconsideration as in my daughter's situation when they incorrectly applied the regs to her Chap 35 issue and they reversed that in 3 weeks when they actually read the regs.

I am going to search the BVA for any potential award on this type of motion but I would imagine if a vet considers a Motion in regards to a BVA decision they might be better off getting a lawyer and filing appeal with the CAVC instead.

[Berta]

It took me about 4 minutes to find these 3 BVA cases regarding Motions to Reconsider:

This case is a partial remand due to a Motion for Reconsideration at the BVA:

http://www.va.gov/vetapp94/files1/9409815.txt

In Part:

“The Board of Veterans' Appeals (Board) entered a decision in this

case on December 14, 1992. Subsequently, a Motion for the

Reconsideration of that decision was filed with the Board.

Reconsideration of the decision has been ordered by the authority

granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991) and the

case is now before an expanded Reconsideration Section of the Board.

This remand is not a final decision. The final decision by the

Reconsideration Section will replace the decision of December 1992.”

It is possible that this Motion warranted an award.

In this case the BVA stated:

Following the receipt of a Motion for Reconsideration, in

“December 2005, the Board issued a decision vacating a July

2005 Board decision that affirmed the denial of the veteran's

appeal, and rendering the Motion for Reconsideration moot.

38 U.S.C.A. § 20.904 (2005). The case is now before the

Board for further appellate consideration.”

http://www.va.gov/vetapp06/Files2/0605581.txt

another possible potential award.

In this third case I found the BVA vacated their denial and this set stage for further “appellte consideration.”

This case is more clear cut- the Motion for Reconsideration was granted by the BVA and the veteran attained an award.

In Part:

"The Board of Veterans' Appeals (Board) entered a decision in

“this case on December 11, 1990. Subsequently, a Motion for

the Reconsideration of that decision was filed with the

Board. Reconsideration of the decision has been ordered by

the authority granted to the Chairman in 38 U.S.C. § 7103

(1992) and the case is now before an expanded

Reconsideration Section of the Board. This decision by the

Reconsideration Section replaces the decision of December

11, 1990, and is the final decision of the Board.”

“ORDER

A 100 percent disability evaluation for schizophrenia is

granted, subject to the regulations governing the payment of

monetary benefits.”

from:http://www.va.gov/vetapp92/files3/9220550.txt

I am sure there have been more Motions for Reconsideration granted by the BVA as well.

[carlie]

Also, I want to add in a Rule here for members.

http://law.justia.com/cfr/title38/38-2.0.1.1.5.11.35.2.html

"Title 38: Pensions, Bonuses, and Veterans' Relief

PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

Subpart K—Reconsideration

Browse Previous | Browse Next

§ 20.1001 Rule 1001. Filing and disposition of motion for reconsideration.

(a) Application requirements. A motion for Reconsideration must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision, or decisions, to be reconsidered. It must also set forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration. If the applicable Board of Veterans' Appeals decision, or decisions, involved more than one issue on appeal, the motion for reconsideration must identify the specific issue, or issues, to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion.

(b) Filing of motion for reconsideration. A motion for reconsideration of a prior Board of Veterans' Appeals decision may be filed at any time. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

© Disposition. The Chairman will review the sufficiency of the allegations set forth in the motion and, depending upon the decision reached, proceed as follows:

(1) Motion denied. The appellant and representative or other appropriate party will be notified if the motion is denied. The notification will include reasons why the allegations are found insufficient. This constitutes final disposition of the motion.

(2) Motion allowed. If the motion is allowed, the appellant and his or her representative, if any, will be notified. The appellant and the representative will be given a period of 60 days from the date of mailing of the letter of notification to present additional arguments or evidence. The date of mailing of the letter of notification will be presumed to be the same as the date of the letter of notification. The Chairman will assign a Reconsideration panel in accordance with §19.11 of this chapter.

(Authority: 38 U.S.C. 7103, 7108)"

[Berta]

GREAT info Carlie.

There are 3 types of BVA Motions:

a Motion to reconsider a BVA decision,

a Motion to vacate a BVA decision and a

Motion to Revise a BVA decision due to Clear and Unmistakable Error (CUE) in that decision.

These Motions are best handled in my opinion by vet lawyers.

The VBM from NVLSP has considerable legal beagle stuff on the way they have to be filed with many citations.

I filed one once under CUE Motion which was denied.1995 I thin it was and I fully understand now why it was denied.

I had succeeded at the VARO level under a different claim of entitlement so I didn't pursue the Motion denial.

If the VCAA had been in affect at that time, then the original denial could have possibly been reversed on remand.

Motions to the BVA can be filed by a claimant but an attorney knows all the ins and outs to BVA regs which are different from the RO regs.

[COOL BREEZE]

Have had several Reconsideration granted. In order to avail you must have medical evidence that will tilt the scale in your favor.

This definitely gives me much hope and a great since of relief for my impeding reconsideration case. The medical evidence is there, noted Cue by development-I will just have to wait my turn in line for it to be decided!