Nod Or A Reconsideration

[hmcquade]

Would like some input. I have discussed the fact my claim for PAD secondary to my SC DM II was denied based on no nexus, lack of medical support of the claim.

I was going to file a NOD, a DAV SO at the Saginaw VA Hospital advised me to file a reconsideration with new medical evidence to support a Nexus, he stated it would be process faster than a NOD.

If I file a reconsideration will I get retro pay from the original claim date or will it be a new claim? I have one year from the date of the denial to file.

I am trying to get this all sorted out in my mind and make the best decision.

Thanks,

Hugh

Edited June 10, 2014 by hmcquade

[Navy04]

Reconsideration is faster but it will not keep your original file date. An NOD can take longer but will back pay to your original file date if you are granted SC. It is up to you bud. I am 100% and I just filed an FDC on Friday for 7 more conditions, with a few being reopened where the VA denied me last year when I was Medically Retired, but I lost the backpay due to the fact that it is over the NOD year timeline. Good luck and keep us posted.

[Fat]

^{Well said Navy 04. I filed a reconsideration of decision and never heard from them. I missed my 12 month appeal time and lost out on my original filing date. Tough lesson to learn, but I fault myself for listening to second and third parties. I was eventually service connected at 10% ; however I lost out on 38 months of backpay .}

[hmcquade]

Reconsideration is faster but it will not keep your original file date. An NOD can take longer but will back pay to your original file date if you are granted SC. It is up to you bud. I am 100% and I just filed an FDC on Friday for 7 more conditions, with a few being reopened where the VA denied me last year when I was Medically Retired, but I lost the backpay due to the fact that it is over the NOD year timeline. Good luck and keep us posted.

Thanks for the input. navy04. I am waiting for one more IMO and will be filing with my DAV SO. The original claim was filed in Nov. 2013 so if I do not file a NOD and will lose all the back pay if I win, but will have to wait longer for the boards decision, have to make a decision.

Hugh

Edited June 10, 2014 by hmcquade

[TiredCoastie]

I'd file a NOD. A VSO talked me into the exact same reconsideration claim for the exact same reason. I wound up filing a NOD anyway after the reconsideration claim went past a year to protect the original claim date. And if things go like they did for me, you'll wind up filing a NOD in the end again because the decision still won't be right.

It's an absolute mess and could have been avoided by filing a NOD up front.

USN04 is right that you'll likely have to fight over the original claim date which means loss of retro. 38 CFR 3.156 states that if you submit new and material evidence within the year (like, through the reconsideration claim), the evidence is supposed to relate back to the original claim thus protecting that date. That sure didn't happen with my reconsideration claim and is one of the disagreements in my second NOD.

If you file a NOD and you include new and material evidence with it, the RO will have to re-decide your claim anyway. If they don't grant everything, they send you a Statement of Case (SOC) to which you'll respond with a form 9. Your appeal then goes to the BVA, DRO hearing, whatever... So you'll preserve your original claim date, get a shot at getting the decision right at the local level, and be months to a year ahead on the appeal WITHOUT all the confusion I'm about to cause by having two competing NODs over the same basic decisions but across two different decision points. If you're happy with the RO's relook at your file, then you don't have to continue the appeal. It's the best of all worlds.

Now, if your VSO is like mine, they'll desperately try to talk you out of it. I wound up firing mine as I approached the NOD point because they were completely unsupportive and VSOs, in general, have a history of doing more harm than good sometimes with the appeals process. It's a lot of work for them and they'd rather not do it if they can push you off on a claim, which for them is more like "fire and forget." You don't actually need a VSO. If you're not comfortable going it alone, either see if you can get a local recommendation for a VSO or see if there's a good veterans appeals lawyer within reach. The lawyer will cost you a part of your retro, but will have a vested interest in your outcome.

[hmcquade]

I'd file a NOD. A VSO talked me into the exact same reconsideration claim for the exact same reason. I wound up filing a NOD anyway after the reconsideration claim went past a year to protect the original claim date. And if things go like they did for me, you'll wind up filing a NOD in the end again because the decision still won't be right.

It's an absolute mess and could have been avoided by filing a NOD up front.

USN04 is right that you'll likely have to fight over the original claim date which means loss of retro. 38 CFR 3.156 states that if you submit new and material evidence within the year (like, through the reconsideration claim), the evidence is supposed to relate back to the original claim thus protecting that date. That sure didn't happen with my reconsideration claim and is one of the disagreements in my second NOD.

If you file a NOD and you include new and material evidence with it, the RO will have to re-decide your claim anyway. If they don't grant everything, they send you a Statement of Case (SOC) to which you'll respond with a form 9. Your appeal then goes to the BVA, DRO hearing, whatever... So you'll preserve your original claim date, get a shot at getting the decision right at the local level, and be months to a year ahead on the appeal WITHOUT all the confusion I'm about to cause by having two competing NODs over the same basic decisions but across two different decision points. If you're happy with the RO's relook at your file, then you don't have to continue the appeal. It's the best of all worlds.

Now, if your VSO is like mine, they'll desperately try to talk you out of it. I wound up firing mine as I approached the NOD point because they were completely unsupportive and VSOs, in general, have a history of doing more harm than good sometimes with the appeals process. It's a lot of work for them and they'd rather not do it if they can push you off on a claim, which for them is more like "fire and forget." You don't actually need a VSO. If you're not comfortable going it alone, either see if you can get a local recommendation for a VSO or see if there's a good veterans appeals lawyer within reach. The lawyer will cost you a part of your retro, but will have a vested interest in your outcome.

Thanks for all the input. Mu VSO gave me bad information on the original claim, it made me look incompetent and my DRS.

The new IME/IMO are from the same DRS but are now fully medically developed with all the right language and stating "it most likely than not"

I am going for the NOD, I am not sure the new letters will be considered new Medical evidence not am I willing to take the risk you and others took. You are all a great help!

Thanks again,

Hugh

[kate7772]

My husband currently has a reconsideration in. We thought that the original date would be preserved if the one year mark had not passed. Sure hope the DAV did not steer us wrong in this.

Kate