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

[K_C]

Can't have an appeal or NOD going on the same time as a reopen.

Hope this makes sense.

Thank you Carlie, Berta, Gastone, et al, for the responses. All have been informative.

I inquired with three law offices to see if the submission of N&M evidence was the way to go, or if they felt going directly to appeal would with their help would be better. I made it clear that their fees were not an issue, and that I'd gladly pay it if it was the best way to proceed with the case. Two attorneys said they couldn't take me to appeal at this time because of the fact that I had N&M evidence. I think, in some ways, they were saying my best route was the request for review first. The third law office, well, I think the clerk couldn't get my message straight when she spoke to the attorney. She seemed aloof and uninterested in understanding my question, so that went nowhere not fast enough.

Carlie, I'm curious about your statement above. Are you saying that while I have a pending review request, I can't go to appeal? If so, I can certainly still file the NOD, correct? When I file the NOD, if the review is still pending, do they just carry on with the review then turn it over to BVA?

Thank you all, again.

KC

[Berta]

Maybe this will help.

I was denied for an SMC CUE and filed for Reconsideration. ( 2004).It appeared within mail I received from my VARO that they were working on the rec0nsideration request. But I had marked my calender and filed my NOD within days of the NOD deadline because by then I knew they were just hoping to piss away my NOD time frame.

After 6 YEARS or more had passed I was finally put on the BVA transfer list as I had filed a timely I-9.

I was delirious with joy. The BVA can read.

Then a miracle happened. Nehmer IHD. August 2010. I filed a Nehmer claim.

My SMC CUE involves 3 separate CUES VA had made, one regarding my husband's AO IHD.

In early December 2011 I received a Nehmer denial.

They said since the veteran's SMRs revealed no IHD in service, they denied the claim (WTF!!!!!!!)

I raised HELL and got them to CUE that decision asked them to also resolve the longstanding pending CUE claim from 2004 as it was filed prior to my AO claim and contingent on a proper IHD award. That claim had not been sent to the BVA yet.

It then took the Phila Nehmer RO a mere 3 weeks to reverse the denial, award for the AO IHD and also award for the 3 CUES in the 2004 claim.

My long point is that some claimants have been very successful with Recon requests. I am pretty sure my initial DIC under 1151 claim was resolved via a reconsideration request but also it involved the OGC calling them up as well.

Others have had to file timely NODs, because their NOD time was running out even though their recon request had ample merit....and that also could lead to success.

Does that answer your question?

Edited October 23, 2014 by Berta

[K_C]

Thank you, Berta. It does.

My thoughts at this point are:

1. I've already written a clear, concise, and logical reconsideration request. I've not claimed any CUE because I'm not exactly sure where it's appropriate to use. Frankly, I feel 80% of the decisions I disagree with are CUE, but I am hesitant to throw that out at them or even how--is it just stated in the letter, is there specific verbiage, or a specific form, etc.. In any case the letter is written and I only have to gather a few straggling medical records from providers who are dragging their feet in my records requests.
2. 2/2 law offices have advised me to push forward with the reconsideration because I have N&ME, and that they can't consider taking the case until the N&ME has received a decision from the VA. They seemed to have my best interests in mind and both fervently cautioned me to mark my calendar and file an NOD before the deadline.
3. It could be said that the review process give my claim an additional opportunity at more favorable adjudication that going to appeal just wouldn't. As odds go, having 3 rolls of the dice is better than 2. Of course, this analogy discounts the possibility of the review request actually holding up an appeal, but still stands as far as the claim having an extra chance.

All things considered, in my particular position I feel the appropriate course of action is to proceed with the request. If it's denied or is held up, I'll be forced to file an NOD. However, if it comes to that, hopefully at that time I can find an attorney who will actually look at my case and take it, because I very much want an attorney on my case when it comes to appeal time.

KC

[NavyWife]

I think you should submit the Nexus letters and DBQ's and/or IMEs along with the claim. Everything upfront --and file it as an FDC.

I don't understand why you would lead VA get away with lowballing you. They are notorious for this. They have probably done it to every vet on this site. If you have read the CFR 38 rating schedule and your medical evidence supports a specific percentage why wouldn't you point that out to them? Unless it's something that would not affect your combined percentage, I don't see why this would be left out.

You sound like a smart guy who's done your homework. Best of luck!

[carlie]

KC,

This would just be something to do if you have time on your hands

and feel like it.

What exactly is in the Reasons and Bases Section that you feel is CUE

and exactly why do you feel it is CUE ?

[K_C]

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