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

[ArNG11]

DONT DO A REOPEN, UPON DENIAL FILE A NOD, AND REQUEST APPEAL.

The VSO or RO wont tell you this, but the RO has to do a full reconsderation of your claim anyway when you file a NOD and request appeal. They have to get thier shit together ands write a SOC (statement of the case). Ok once u get the statement of the case, you can rebutt with arguments or more evidence. Back To the drawing board they must go again, to tell even more lies. ok when they come back with thier super duper this is the 3rd time we told you to go take a long walk on a short pier, You can AGAIN rebutt thier fabrication of mass deception. And they must reconsider.

This is why they instruct the VSO s to tell you to NOT file a NOD.

They have to construct a story that is somewhat presentable and remotely believable to present to a judge.

Likely what they are really doing at the RO when you file for reconsideration, is starting work on your SOC. Granting your claim is out of the question, but gives them PLENTY of time to cook up a " plausible story " to deny you.

This is how the system works thru my eyes anyway.

Yup I have to agree with you on this 63sierra. I think the reconsideration route is not the best route. I have to admit it can yield some reward, but it is going to be another low ball. In my case doctoring the dbq so as to yield the least possible benefit if they can't outright deny. I got another 10% added that should have been awarded the first go around with my medical evidence that I provided. But I literally caught the examiner looking at my initial dbq and raising some ROM measurements while lowering others as to balance the DBQ. I wanted to flip but I kept my composure. If I lost it, it would not have helped my case any. I think asknod states it well regarding the VA, " what part of no don't you understand" and asknod's analogy of the "hall of mirrors" that is the VA is right on point.

The jest of this system is that you will be invested in a long fight. The key here is not to give up. Keep your timelines correct. Meet all the appeal dead lines and FIGHT! Use the evidence, use the regs, use the law, and use their mistakes (willful misconduct) against the VA. You might have to take it up all the way to the courts, but if you have solid evidence and inservice accounts of injuries and illnesses, the VA will buckle, it may take to the day you're about to walk in to see the judge, but they well know when they are in the wrong.

Sadly it all boils down to the $. The VA will do their best to keep you from benefits if they can.

[FormerMember]

Chris makes an excellent point. Show me the CFR. There isn't one anymore than there's a tooth faery. VSOs, God bless their pointed little heads, are woefully unprepared for what is in store for them after an initial denial. There is no more bargaining at ROs as was common back in the 90s. The books are cooked with an eye to denial. If 85% lose their claims perennially and that figure has remained static for decades, then it can be said there is a "process" at work here that is not well known. Administrative reviews do occur in VR&E requests but that is probably the closest comparison to a Motion for Reconsideration. Absent any legal training and/or a JD, you are letting rank amateurs run your claim. It figures they'll make up law to prolong the fish-on moment.

Using the actual phrase "Motion For Reconsideration" (or MFR), we can only discern it in requests for denials at the BVA where a Veterans asks for it and an expanded "Board" of three VLJs. As your chances of getting an answer within 120 days are between slim and none, you endanger your ability to file your Notice of Appeal with the CAVC within the allotted time. This is no coincidence. Other than that, it is a chimera. So many of you who have not had the benefit of having your teeth rearranged by VA numerous times may labor under the misconception that we do, indeed, inhabit a nonadversarial ex parte process where every benefit possible is extended to the Vet if deserved. For instance, if using a VSO, were you aware that when your VSO-defended claim arrives in DC, it often is argued by a VSO different from the one you filed it with? VSO's have a limited number of appeals teams (currently 5) and defend Vet's claims on a first come, first served basis. If you are defended on paper by DAV, it is not uncommon for your appeal to be handled by a team consisting of MOPH, AmLeg and VFW gomers if no DAV chuckleheads are free to do so. Scary? You bet. Then throw in no Juris Doctor degrees when you are up against 500 VA staff attorneys with that JD after their names.

And as for horse-trading in the back room, this is often where it happens. You read about it in your BVA decision where it says "Hearing loss and tinnitus are granted at 0% and the claims for Sleep Apnea, Ischemic Heart disease, Parkinson's et al are denied. Have a nice day, hear?"

The only nonadversarial part of this process is the tenor of the denial. Most consist of an abject apology for being unable to grant your heart's desire. The kick in the teeth is the proffered olive branch to come on back if you unearth any more new and material evidence that would merit reopening the claim. I use the technique of the Everlasting Gobstopper from Willie Wonka fame. I assemble a library of evidence and submit something new after each denial. 38 CFR 3.156(b) demands a de novo adjudication on any claim denied if n&m evidence is submitted-even if it is tendered after the Form 9 and the away game in DC has begun. You can milk a claim to an eventual win simply by beating them to death with 3.156(b) over and over. It's an art form so be careful not to step on your necktie and submit something that doesn't qualify as n&m.

A

Guns are free. Cleared in hot on heading 270.

[vern2]

I filed my NOD the day I received my denial, Sept 23, 2013. Sent cert mail, RR then three more supplemental letters with N & M evidence, on May 30, 2014, still heard nothing from the black hole that is St Petersberg. Finally did the Peggy thing and was sent email telling me that my denial was going the DRO de novo route, which is what I had requested in September 2013, almost 9 months ago! Still on the HAMSTER WHEEL. Maybe I need to change my handle to HAMSTER 3P0:)

[hmcquade]

I've been representing Veterans at VA Regional Offices around the country for 7 years, and NEVER have heard of a Reconsideration of a Ratings Decision.

This concept has been popping up a lot the last year, and so I wrote about it on the Veterans Law Blog:

http://www.attiglawfirm.com/move/reconsideration-va-rating-decision-appeal/

I have asked every VSO that says there "IS" a Reconsideration process to point me to the CFR cite that allows it, or to the VA Procedures Manual (M21-1MR) that lays out that process, and nobody has ever been able to show it to me.

I suspect that what VSOs are calling a "reconsideration decision with new evidence" really a "reopened claim with new and material evidence", and that VSOs are talking Vets into doing this to boost the VSOs numbers (on paper) showing how many claims that they handle, but I'm just speculating from what some VSOs are telling me.

If you have New and Material Evidence, and it is DURING the one-year appeal period, file a NOD. NEVER try to reopen a claim that is still appealable - it's the surest way to LOSE your earlier effective date.

The ONLY way to protect your original filing date for past-due benefits purposes is to file a Notice of Disagreement within 1 year of the Notice of Action Letter delivering the rating decision.

Chris

could not agree more with you Chris, Thanks.

Hugh

[lotzaspotz]

Great to see you here, Chris.

[vern2]

I had success with the DRO , I thought, back in 2007, but have some reservations. I went from denial to 30%, think should have been 60%, more to follow.