Should I Reconsider Or Appeal?

[postman56]

Hello all. I received my letter from the VA whereas I was service connected for Anxiety Disorder NOS with Depression at 10%. I am currently going through the DES Pilot program (MEB/PEB). I have had 3 C&P's for this condition. First C&P exam was with the QTC in Hinesville Ga. on Sep. 28th 2010 where a Medical Opinion was not given. Second C&P exam was at Ft. Steward on Mar. 23rd 2011 Where the Examiner did give a Medical Opinion relating it to service and the Rating Scheduloe that was used would grant 30%. The Third C&P was on April 1st 2011 at James Haley VA where the Examiner used the Rating Schedule that would grant a 10%. The VA at Auburn Wa Used the Exams from The QTC on Sep. 28 without a Medical Opinion and The Exam from James Haley in Which it would grant 10%. The Exam from Ft. Steward was not used at all. My question is should I do a Reconsideration, Appeal or file for an increase? Oh the GAF was 65.

[broncovet]

3 Conflicting C and P's: Hmmm

It is not suprising that they are in conflict, but it is suprising they ordered 3. How did you make the assessment the VA "would grant"

30% or 10% or zero? Did you use the schedule of rating disabilities and then see which of the symptoms the C and P examiner reported? This is very hard to do, since different people look at an egg with a different viewpoint. Specifically, the regulations state that you do not necessarily have to have all, or even some of the symptoms on the schedule to qualify for a particular rating.

All that being said, if you think they used the least favorable C and P exam and "did not use the others", then you could ask for a reconsideration using the most favorable C and P as "N and M" evidence if you dont think that exam was included. Most of the time, the RO decision lists evidence. Did the decision list as evidence the more favorable exam? If not, you are certainly justified in asking for reconsideration.

However, as Berta has pointed out, NEVER let the one year clock go by without the NOD, regardless of the outcome of the reconsideration. Oh, yes, I have read that a reconsideration "stops" the one year appeal clock, but I would not hold my breath. When the VA sees a NOD after one year they deny it automatically, then ask questions MUCH later, and probably never.

If your decision lists the more favorable exam, but does not cite why the more favorable exam was rejected, I would try to hit that home in your NOD, since a reconsideration requires at least some "new evidence". The VA has to give a "reasons and bases" for its decisions, and certainly, if you have a doc that opines you should be rated at 30%, the VA should have to give reasons why they rejected this docs evidence. Did they say they rejected it because the exam was "incomplete"? Did the doc list his qualifications on the C and P exam? If the VA is calling this exam "defective" then they need to so state the reasons. Not all VA exams are adequate for rating.

[postman56]

Thanks for replying broncovet, yes I used the schedule of rating disability. And the C&P that was not used fit the 30% rating word for word. This exam was not listed as evidence, it seems the VA ignored it all together, but they did site a C%P that did not have an opinion.

[john999]

Unless you have new evidence I would file an appeal. You have to file a NOD first. I would get an IMO if I were you and ask for a reconsideration. Keep your eyes on the NOD clock.

[postman56]

John999, they have a C&P that was not listed as evidence. Is this considered new evidence?

[john999]

It is a basis for an appeal, but I do not think it is new evidence. I think if you ask for reconsideration without new evidence your claim is going to be looked at by the same people who denied it, or low balled it, the first time for the same reasons. That does not seem like a strategy to me. When I am denied or low balled by the VA I almost always try and get some new and favorable medical evidence.

[broncovet]

[Yes, I think if the VA did not cite the C and P exam in the "evidence" section, and did not refer to the exam in the decision, then yes, its new and material evidence.

There is a difference here. You see, 38 CFR 3.156 "N and M evidence" is for reopening a previously denied claim. This is different than asking for a "reconsideration" based on new evidnece. The major difference is the effective date.

1. If you ask to reopen a claim under 38 CFR 3.156 a, then the earliest effective date you can get is the date you reopen.

2. However, if you ask for reconsideration of a denied claim because you have "new evidence" not available to the decision maker at the time of decision, then your effective date can be back to the date of the original claim.