Hand Delivering Nod-Take Everything?

[kate7772]

We are hand delivering my husband's NOD to VA regional tomorrow. Should we include all IMO's, private medical records and pertinent literature with the NOD or wait until a later date to send it in?

Thanks,

Kate

[GatorNavy]

Gatornavy: Check out U.S.C. 17-133-1 "Procedures-Reconsideration of Denied Claims." What do you think? Can the VA consider a Reconsideration Request a NOD filing? The VA as well as the rest of the US Govt are big on following Regs. I don't see any wiggle room in 17-1333-1 allowing the original rater or his supervisor to classify a "R-F-Recon" as anything other than a NOD filing.

Semper Fi

Gastone

well, first of all, the VARO only knows and uses the M21 which is their operating instructions. The M21 is derived from 38 CFR. The entire VBA uses 38 CFR which is the Agency's guidelines for execution derived from the USC. The USC is enacted by Congress and signed into law by the President.

USC 17 is the law which governs how the Veteran's Health Administration reimburses Veterans for health benefits.

USC 38 is the law that governs how the Veteran's Benefits Administration operates for compensation, pension and the like.

§ 3.156 New and material evidence

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(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)

Edited September 12, 2014 by GatorNavy

[carlie]

Carlie: Up until just recently, I agreed with your post. I did see a warning on a Stateside Legal blog advising to be "VERY Careful" in requesting the NO REG Covering "Reconsideration" due to it being considered by the VA as the filing of the NOD.

After reading that warning, I came across U.S.C. 17.133-1 "Procedures -Reconsideration of Denied Claims." I haven't found anything to indicate this regulation has been rescinded. I'm advising Vets that I talk to, to steer clear of any type of "Reconsideration" request unless they have all their "New Evidence" to submit with the Recon Request.

Semper Fi

Gastone

Gastone -

I guess your going to need to keep agreeing with me - because what you've posted relates

only to VHA benefits and is not applicable to VBA benefits.

Laws and regs for VBA reconsideration come into play at the BVA level.

Reconsideration of Denied Claims

§17.133 Procedures.

(a) Scope.

This section sets forth reconsideration procedures regarding claims for benefits administered by the Veterans Health Administration (VHA).

These procedures apply to claims for VHA benefits regarding decisions that are appealable to the Board of Veterans’ Appeals (e.g., reimbursement for non-VA care not authorized in advance, reimbursement for beneficiary travel expenses, reimbursement for home improvements or structural alterations, etc.).

These procedures do not apply when other regulations providing reconsideration procedures do apply (this includes CHAMPVA (38 CFR 17.270 through 17.278) and spina bifida (38 CFR 17.904) and any other regulations that contain reconsideration procedures).

Also, these procedures do not apply to decisions made outside of VHA, such as decisions made by the Veterans Benefits Administration and adopted by VHA for decisionmaking. These procedures are not mandatory, and a claimant may choose to appeal the denied claim to the Board of Veterans’ Appeals pursuant to 38 U.S.C. 7105 without utilizing the provisions of this section. Submitting a request for reconsideration shall constitute a notice of disagreement for purposes of filing a timely notice of disagreement under 38 U.S.C. 7105(b).

(b) Process.

An individual who disagrees with the initial decision denying the claim in whole or in part may obtain reconsideration under this section by submitting a reconsideration request in writing to the Director of the healthcare facility of jurisdiction within one year of the date of the initial decision. The reconsideration decision will be made by the immediate supervisor of the initial VA decision-maker. The request must state why it is concluded that the decision is in error and must include any new and relevant information not previously considered. Any request for reconsideration that does not identify the reason for the dispute will be returned to the sender without further consideration. The request for reconsideration may include a request for a meeting with the immediate supervisor of the initial VA decision-maker, the claimant, and the claimant’s representative (if the claimant wishes to have a representative present). Such a meeting shall only be for the purpose of discussing the issues and shall not include formal procedures (e.g., presentation, cross-examination of witnesses, etc.). The meeting will be taped and transcribed by VA if requested by the claimant and a copy of the transcription shall be provided to the claimant. After reviewing the matter, the immediate supervisor of the initial VA decision-maker shall issue a written decision that affirms, reverses, or modifies the initial decision.

Note to §17.133: The final decision of the immediate supervisor of the initial VA decision-maker will inform the claimant of further appellate rights for an appeal to the Board of Veterans’ Appeals.

(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0600)

(Authority: 38 U.S.C. 511, 38 U.S.C. 7105)

[carlie]

Technically a "Request for a Reconsideration" at the VARO level is a re-open within the one year with New and Material evidence. I understand it has no bearing at all on the NOD or the appeal date. It can be a useful tool. It takes so long to process a decision that new evidence can come to light or the Vet's condition can change. You can file a NOD right away but sometimes in a smaller shop the rater is still familiar with your claim and will change the decision. Worked for me once anyway. I got SC for two contentions but I submitted some inpatient records that had recently come to light. Took me four months to get the decision changed. I was low-balled but at least I had retro in the bank and SC contentions to appeal.

Bingo.

And if you a claimant has what the claimant wants to call a request for reconsideration at the VARO level

and the one year passes by to file the NOD - they most likely will have to fight the effective date -

unless they submitted what the VBA considers as new and material evidence.

Maybe asknod will pop in here on this one and provide the skinny from his effective date.

[Gastone]

Carlie: I stand corrected. Thanks for your assistance and clarification of "Reconsideration U.S.C. 17.133." As long as the Recon Request doesn't affect the claim, if filed immediately after the Denial, it can't hurt and possibly may get an award. Vet's can't sit back and think the Recon will be affected by, or take the place of filing the Official NOD within the 1yr time limit.

Semper Fi

Gastone

[GatorNavy]

Carlie: I stand corrected. Thanks for your assistance and clarification of "Reconsideration U.S.C. 17.133." As long as the Recon Request doesn't affect the claim, if filed immediately after the Denial, it can't hurt and possibly may get an award. Vet's can't sit back and think the Recon will be affected by, or take the place of filing the Official NOD within the 1yr time limit.

Semper Fi

Gastone

Well it's still a time gamble if you don't file the NOD right away. The sooner you file the NOD the sooner you get a docket number for the BVA appeal. The way I see it, unless a Vet has new and material evidence that is irrefutable, or incontrovertible; then you are just throwing time back to the VARO. Few Vets (or VSOs) know what evidence will absolutely change the outcome before the appeal date passes.I got lucky once, but it was under special circumstances. I will probably never have the occasion again to submit evidence before the NOD.

[Gastone]

GatorNavy: Have you come across any Vets that have had a positive outcome, as in reversal of denial, with "Reconsideration?" I just started hearing the "Reconsideration" term from other Vets within the past 2yrs, if that. One purported 12yr VSO on another Blog, claims to use reconsideration on 80% of his Denied Claims. He didn't offer a success rate, when asked. He did mention that you had to be careful in the wording of the request so as it not be considered a NOD filing. Again, he didn't respond when queried regarding the "Safe" wording.

Because it worked for me, I think I'll continue to recommend filing a NOD DRO with Personal Hearing. A "Reconsideration" request seems iffy at best and may give a Vet a false since of hope. The longer they wait to file the NOD, just adds time to the hearing or court Date. Thanks for your input.

Semper Fi

Gastone