Experiences With Request For Reconsideration @ Varo Level

[K_C]

Hi All,

I recently received my decision letter and, although I'm grateful for the decent rating, there's more clear error than there is accuracy and reasonable decision making. There's evidence missing from the evidence list, evidence with incorrect date ranges, and failure to tie some of the decisions to the actual evidence in the decision reasoning given. Additionally, there was error in the C&P exam that went unresolved but and addendum was filed by the C&P examiner for me in my favor after a complaint was filed with the VAMC. I have some new-to-the-VA evidence, apparently overlooked evidence, and what I would call some CUEs.

Where they've granted me service connection, even if it was low-belled, I'm making no request for reconsideration. What I am requesting reconsideration for are the non-SC'd decisions, except where there is no currently rateable level of disability. I've essentially finished the letter and am in the process of obtaining the medical evidence directly from physicians so I can submit it with the package.

My question is to those who have experienced or have something to say about using this method. Are there pitfalls? Is this going to have any negative impact or delay upon a bonafide appeal, should it come down to that, if they haven't yet responded to the request for reconsideration at the VARO? My reasoning for requesting the reconsideration rather than jumping right into appeal is that it might save me time, it's another layer of potential re-decision in my favor, and it might happen quickly--I have no idea how they handle this sort of request, and, finally, it gives me time to establish more medical evidence with my physicians and obtain IME nexus and letters.

All thoughts are appreciated.

Thank you.

KC

[FormerMember]

BroncoVet wrote this for me in 2012

http://asknod.wordpress.com/2012/05/13/to-dro-or-not-to-dro/

Clear prop

[FormerMember]

Here's more enlightenment for Gastone about the "reconsideration" conundrum versus a submission of NM&E after the initial denial. I have asked for but never received a new, brief look at a denied claim in 25 years. Some law dogs refer to it as an administrative review and that exists to a degree. It requires a water carrier at the VARO who is smart enough to explain it to a dense GS-9 VSR, too.

You can file NM&E again and again and receive numerous SOCs and SSOCs following a denial until you run the risk of a) running out of NM&E or b) having to file the NOD within one year from initial denial. Your authority is 38 CFR 3.156(b).

http://asknod.wordpress.com/2012/08/05/dro-reviews/

chocks free

[Notorious Kelly]

Wow, asknod, I think everyone should read your post on this: http://asknod.wordpress.com/2012/08/05/dro-reviews/

Reminds me of my clubbing days when a girl would deny my request to dance and I'd say, "Are you sure?'.

Never once did one say, "No, I was stupid a minute ago; I'll dance with you now."

The backroom deals and trophy case make sense.

We have to remember: there are fine workers at the VA who care about veterans but this is their career and that comes first.

Edited October 24, 2014 by Notorious Kelly

[K_C]

I would like to take my case to appeal, but the two attorney assistants who actually listened to what I was saying replied that they could not take my case if I had N&ME. They said that it needed to go through the RO review and have a decision that included all the evidence I had. This didn't really make sense to me, but who am I to argue with them? Before I appeal, I really really really want an attorney working with me.

If I file an NOD and go to appeal with the N&ME but elect for BVA and waive the remand to the RO (i.e. attempt to force it into the BVA's hands), how will that affect my ability to file a new claim? I have other conditions I'll be claiming soon (still gathering evidence). I have previously read that, at least at within the last couple of years, having a claim at the BVA and one at the RO isn't possible because the C-File needs to be at the RO so the new claim can be processed. Is this still the case? If I file NOD, and plan on submitting a new claim, should I just as well ask for a DRO since my claim file will be stuck there anyway?

KC

---

Also, both very good articles. Thanks for sharing!

[carlie]

Hi Carlie,

Like I mentioned earlier, I'm not sure exactly what constitutes a CUE in the eyes of the VA. I'm therefore reluctant to make claims of it in my letter.

• They're denying my left knee condition while granting the right. I was discharged in 2008 for my right knee, which was flaring up at the time and caused me to fall out while descending some stairs. In the medical records, the physician noted that I mentioned this was a problem for me for several years but had not sought medical attention. The same is present in my private physician and specialist medical records following my discharge. The narrative I provided them explained that my knee troubles began years earlier when working on aircraft from all the kneeling on hard surfaces, but that I self medicated rather than seeking any medical attention. I explain in the narrative that I frequently alternated between knees over long periods of work, as one would reasonably expect. I also noted that there were numerous traumatic acute injuries from slips on the ice (Alaska) and bangs on metal toolboxes and the like. Aside from the reasonable logic behind the narrative, I provided three buddy statements in support of it. They overlooked at least one of those buddy letters and completely fail to address them or the doctor's notes in the reasoning for the denial, and thus I'm resubmitting those documents with emphasis on the relevant parts. Since I have their attention, I also question why no consideration of the left knee as secondary to the right was given, seeing as the problems with my knees have historically required extra stress on the other to compensate for the one which was flaring up at the time. I do not believe this to be CUE on their part, just a minor oversight if anything. In fact, I'm not sure any of the evidence or statements on my part even have merit with respect to their regulations and directives. To me, my rationale makes sense. However, I do understand it may carry little-to-no weight with the VA's rating guidance.
• They deny otitis media saying there's nothing in my records indicating a problem in service. My medical records show five complaints of ear pain in service and six post-discharge, with at least six actual diagnoses of otitis media including a perforated ear drum. I feel this is CUE, particularly since I know they have my SMRs which clearly show the diagnoses.
• They do the same thing for my sinus and allergies claim. Both denials state no medical evidence in service, which is just ludicrous. Sinus claim: Ten complaints in service, and fifteen post-discharge with at least seventeen diagnoses of some form of sinusitis. Allergies: Four complaints in service, three post-discharge. I believe these to also be CUE.
• They deny epididymitis because I was only diagnoses once in service, and it was early on. It's denied on the basis of the C&P examiner's nexus statement (they copied and pasted it verbatim). However, I explained in a narrative (and in a complaint against the C&P examination report to the VAMC) that no additional treatment was sought because the physician I originally saw basically told me not to come back unless certain criteria were met (debilitating pain and/or symptoms lasting longer than a week). If those criteria weren't met, I could self-medicate with OTC pain pills and rest. The first time that criteria was met, for me, was in 2010 when I thought I had a hernia the pain was so bad. It was found to be my old friend the epididymitis, just more severe. The C&P examiner, when I spoke with him after the complaint, explained that he never saw that evidence and would have written a favorable nexus if he had. This could be CUE if you consider the fact that the examiner wasn't supplied records which I asked the VA to request.

I'm not pulling the CUE card on any of these in my letter. But, if you think it would be appropriate and advisable on any of them, I'm certainly appreciative of and would like to hear your thoughts.

This is based on pure speculation, but to me it seems like they got me to 30% and said to themselves that it was enough for a first claim, and stopped looking at the evidence for the other conditions. I can't imagine any other way such a volume of evidence could be completely overlooked. Maybe it's just lowered expectations, but I can see where they're coming from if that is what they did. Although I was activated for over two years on OIF/OEF, it was all stateside drone ops. While I'm very lucky and proud to be able to fulfill a call to duty, I'm not a combat veteran. I haven't lost any limbs, organs, my life, been shot at, or see my friends injured and killed. Those vets deserve the 70% above ratings, and without delay. Although the conditions I came out of service with impact my life in many significant ways, it doesn't even compare. I feel very, very blessed to have received 30% on my first claim. I'll gladly paddle my way through the VA processes until the 38CFR matches my reality.

KC

http://www.ecfr.gov/cgi-bin/text-idx?SID=1e3e1dbf6ea2d6c6a7796b6ebc87ca56&node=se38.1.3_1156&rgn=div8

§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)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

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

Cross References: Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

[carlie]

KC,

This is always the main thing . . .

Whatever is stated in the Reasons and Bases on a denial or lowball

must be overcome.

Many times the decisions have lots of garbage in them - that distracts us

from concentrating on the exact reasons and bases for the denial or lowballed

evaluation.

Don't fall into the trap of that - keep your concentration where it belongs.

One day I went to my mailbox and had about 4 different decision letters from the VBA.

Each one was a denial on some issue.

Each one had garbage in it that was not even really relevant to the claim issue.

I wound up being baker acted into the VAMC nut ward that day, as I was definitely

a danger to myself, AND OTHER'S.

jmho