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

[FormerMember]

A de novo review is not as it appears. When you submit N&M E during the appeals window following denial, your de novo review is done by the VA RVSR's boss-often a DRO. Therefore you are getting a de facto de novo decision without asking for a DRO review. A de novo review includes all the evidence filed previously and the new evidence you submit. VA is, by law required to view it in an entirely new light and give the appropriate balance of weight to the new evidence submitted in conjunction with the old evidence.. This produces a new decision (or denial) but as long as you do not go past the one year statute of limitations on filing the NOD, you can do it as many times as you wish. Your NOD must be filed within the requisite year or you lose your effective date of filing. You can disagree with a decision by filing new evidence in conjunction with 3.156(b) any time after the initial denial.

38 CFR 3.156(b) states:

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

This is how I won my effective date all the way back to March 1994 in November (2013). VA fought me all the way to the CAVC before folding.

a

[carlie]

How long from the time of request, until you went to the DRO hearing. .?

From what vern posted they went the 'DRO de novo route'

(DRO DeNovo Review)

which is entirely different than requesting and scheduling a DRO Hearing.

[hmcquade]

I have another NOD question. What good will an Attorney do me of I file a NOD? I already have to necessary documents to file, I know now want is need, they more I think about using an Attorney at this point does not make any sense. What do you think?

Hugh

[bluenote]

Folks:

I'll give my humble two-cents because at the macro-level it's an issue of agency legitimacy whenever a claimant is misinformed about the nature of a request for reconsideration by either VSO . . . or more critically employees of the VA [which is unequivocally occurring]. As noted by many, a "request for reconsideration" will simply be processed by the RO as a new claim (in the case, denial of S/C a claim to reopen). There is a regulatory provision that can preserve the effective date of award to original date of claim on the claim to reopen, but EED before establishing service-connection is throwing the cart before the proverbial horse.

By its nature, a request to reopen requires the claimant to submit new and material evidence as an initial threshold evidentiary inquiry. Below is the general framework for what is considered "new" and "material". My principle concerns are this is not being explained to claimants when they are filing a "request for reconsideration". Moreover, I don't feel confident that veterans (most of which have never seen much of the evidence associated with the C-File) can properly assess whether a statement or document is material or new . . . not because the veteran is not smart enough or doesn't have knowledge of Title 38 but because they are emotionally involved in the claim and commonly feel that the RO simply misconstrued the nature of the evidence in the existing record.

In short, there are circumstances where its in the veteran's interest to submit a "request for reconsideration" . . . mainly because the timelines on appeal have created that scenario; however, the individual needs to be informed about the nature of the claim, what evidence would need to be submitted, and the consequences of not timely appealing a prior Rating Decision. I don't believe that the system (VSO/DVA) currently has the ability to provide that level of information.

Seth

______________________________

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

[TiredCoastie]

Seth,

That's an interesting point of view. Let me ask this follow up, then. If the veteran is not qualified to know if evidence is both "new" and "material," and a VSO and the VA are unable to explain what it is, then who is qualified to make this determination? Maybe this is a loaded question, but I think it should be asked.

I will point out that many of us don't have a lot of other options other than trudge on alone. My appeals' retro aren't going to generate enough 20% to make it interesting to most attorneys. I don't trust any VSO at this point, at least without a local recommendation which I'm not likely to get because I don't know many other vets who live around me who are going through the disability compensation nightmare. Based on what we can learn through the BVA case website, from others on forums like this, and just reading through the CFR, we're at least armed with enough knowledge to carry the battle forward.

So if I'm not qualified to figure this out due to my strong emotional attachment and an attorney's not likely to take my case...what do I do? My only option is to make the argument the best I can with the knoweldge and understanding I have. Am I right?

One Tired Coastie

Edited June 21, 2014 by TiredCoastie

[lotzaspotz]

Coastie, we went the pro se route on several claims because we had initiated them in 1993, which of course was prior to the time (starting in 2007) a veteran could get legal counsel after the first NOD, so I have seen the challenge from both sides of the question. If you feel you can handle the appeal, by all means do so. All you've got to lose is the time it takes to reach the next decision level. If your appeal is denied at the Board and you head to the Court, however, I would reconsider going there pro se. I don't think any veteran should approach the justice system unrepresented. At that point, the incentive for the attorney is not just the 20% of retro, but also EAJA funds they receive if you prevail (meaning anything but a denial) at the Court. JMO.