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

[Gastone]

KC: regarding your 10/23 post. I recently mentioned a Nam Vet buddy that I am helping with his IU Claim denial from mid 2013. Case in point, he immediately filed a NOD requesting DRO Hearing. All good so far, right. He got denied due to college degree and ability according to VA Rater to earn above "Gainful Employment Level." He was certain he could prevail at the DRO. During one of our subsequent discussions I posed a question regarding how bad did he want the IU awarded at the DRO Hearing? I told him of my VET Appeals Attorney experiences and he decided to interview a couple of attorneys. He did, (2) wanted him to cancel DRO Hearing go straight to BVA and 1 recommended sticking with DRO route. Another deciding factor was our discussion regarding his age and did he really want to wait 4+ years for BVA Hearing and possible Remand. He signed with the Attorney for 20% of retro around 10/2013.

Now comes 2014, I get a VA Voc Rehab Denial letter and send it in as Evidence for my 2012 IU Denial NOD. By 4/2014 my friend has applied for Voc Rehab and been Denied. He recently used letter for MI property Tax Exemption, big bucks 08/14. Recently I asked what he had done with his denial letter, he said he was sitting on it for his DRO Hearing that could be a yr+ away. I strongly expressed my displeasure with that decision. He said he thought he forwarded a copy to his lawyer. Called me last night, got copy of letter Lawyer sent into VA with N&M Evidence (Voc Rehab Denial) specifically pointing to the VA's duty to initiate a VARO Review Of the Denied IU Claim. My friend would definitely not mind giving up the 20% retro to get the award Fast Tracked.

The point hear is, just because you have an attorney, you don't stop working on your own claim. His lawyer had no idea nor did he ever advise him of getting a VA Voc Rehab Denial letter. My 6/27/14 DRO Hearing proved how important irrefutable evidence is. The DRO stated the Voc Rehab Councilors written opinion sealed the deal. IU Awarded

Decisions Decisions and their all yours. These blogs provided helpful advice, it's up to you to pick and choose. Just keep in mind, do you really think there is somebody at the VA that is out to screw you intentionally? My limited VA Claims experience has never shown that to be the case.

Semper Fi

Gastone

[carlie]

K_C,

Where you at - come back in when you can.

[K_C]

Hi all,

Apologies for the apparent absence. I've been listening but haven't had a moment to properly respond. Gathering evidence can be tedious work! Thank you for all the advice and experiences--I feel all of it has done a good job of setting realistic expectations for me.

Gastone: I definitely don't feel anyone at the VA is acting malicious. As I've expressed before in these forums, I feel most of them are in a sense in the same trenches we are. They have huge puzzles of documentation, case evidence, CFR, VA memos, etc., and have to answer to the massive bureaucracy above them anytime they blink. I have much sympathy for raters, adjudicators, and the like. I imagine many of them are Vets themselves and wish they could simply approve every claim from a fellow Vet.

I don't have an attorney yet, but would prefer to have one even in this part of the process. Attorneys have workloads and divisions in their time and they also make mistakes like the rest of us. I would never dump my case into the hands of anyone, including a high-profile attorney, and say have fun my work is done. That would be a mistake. The burden of organizing and providing the evidence supporting our claims is on ourselves and always will be. I believe a good VA disability attorney is worth their fee, if for no other reason, simply because they navigate the system every day as an advocate for us, have years of accumulated knowledge and experience, and have strong incentive to win cases. As such, they are going to be familiar with rules, both written and unwritten, and have valuable advice and capacity with regards to approaching any particular piece of the claim. Given the state of the system, I can't fathom an appeal situation where not having an attorney is the better option. If it comes down to appeal, I will definitely have an attorney.

The packet is going out tomorrow. It's a ten page letter. Aside from an introduction and closing, the bulk of the letter is in bullet-form and iterates through six of their eleven decisions with which I have contentions. In the introduction, I clarify in bold type that if each of the contended items are resolved, no further contention will exist and the claim can be considered permanently settled.

For each item of contention:

• There is N&M Evidence submitted. This includes both historical evidence they fail to address in their letter and new evidence from appointments I've had over the last year. There ended up being quite a bit of new evidence, even to my own surprise.
• I also submit all relevant supportive evidence, although some of it truncated for brevity, whether or not it might be in the case file. My reasoning for doing so is, firstly, that I don't know what they did or didn't receive from providers since there is no clear indicator of what they have or lack and some providers did fail to respond to their request. Since my initial filing in 2013, I have personally obtained and cataloged all of my records--and now have a strict practice of requesting them as they are created because I've found it sure is easy to forget all the different physicians you've seen in ten years time when you move as much as I have. Secondly, every piece of evidence I submit is labeled at the top and the parts that actually need to be seen are highlighted. All evidence is grouped for each of these six contentions. Lastly, I felt it would be easier for someone looking at my request to have all the evidence right before them and directly referenced. Once they're done, they can shred it for all I care, but for purposes of review they have everything they need in the packet I'm sending.
• I specifically address their reasoning with my own counter reasoning and why [i feel] the evidence clearly supports mine. In the three cases where they claim there is no record of complaint or diagnosis, I have tables with a row for each record of complaint and/or diagnosis, as well as tallied totals of that data.
• At the end of each section, I state exactly what I believe is fair and will accept as closure for that item. I'm asking for SC and 10% each for five conditions, and 30% for my right knee condition, which in total is roughly half of what I truly believe I'm entitled to according to the CFR and other VA guidelines.

I have a few more conditions I'll be filing for once I have the evidence I need. When I file for those, I will be submitting a letter much like this one with the fully developed claim. I'll put my reasoning, evidence, and expectations on the table from the start. I have no doubt that doing so will result in the best possible outcome.

Thanks again for all the feedback and knowledge, both here and in other parts of the forum. A lot of the good stuff that went into my letter came from information I found here at HadIt. This is definitely one of the best, if not the best, community-based knowledge sources for this stuff.

KC

[Gastone]

KC: Seems your heads on straight and appears you have your ducks, I's T's covered.Stay Strong!

Semper Fi

Gastone

[carlie]

Hi all,

Apologies for the apparent absence. I've been listening but haven't had a moment to properly respond. Gathering evidence can be tedious work! Thank you for all the advice and experiences--I feel all of it has done a good job of setting realistic expectations for me.

Gastone: I definitely don't feel anyone at the VA is acting malicious. As I've expressed before in these forums, I feel most of them are in a sense in the same trenches we are. They have huge puzzles of documentation, case evidence, CFR, VA memos, etc., and have to answer to the massive bureaucracy above them anytime they blink. I have much sympathy for raters, adjudicators, and the like. I imagine many of them are Vets themselves and wish they could simply approve every claim from a fellow Vet.

I don't have an attorney yet, but would prefer to have one even in this part of the process. Attorneys have workloads and divisions in their time and they also make mistakes like the rest of us. I would never dump my case into the hands of anyone, including a high-profile attorney, and say have fun my work is done. That would be a mistake. The burden of organizing and providing the evidence supporting our claims is on ourselves and always will be. I believe a good VA disability attorney is worth their fee, if for no other reason, simply because they navigate the system every day as an advocate for us, have years of accumulated knowledge and experience, and have strong incentive to win cases. As such, they are going to be familiar with rules, both written and unwritten, and have valuable advice and capacity with regards to approaching any particular piece of the claim. Given the state of the system, I can't fathom an appeal situation where not having an attorney is the better option. If it comes down to appeal, I will definitely have an attorney.

The packet is going out tomorrow. It's a ten page letter. Aside from an introduction and closing, the bulk of the letter is in bullet-form and iterates through six of their eleven decisions with which I have contentions. In the introduction, I clarify in bold type that if each of the contended items are resolved, no further contention will exist and the claim can be considered permanently settled.

For each item of contention:

• There is N&M Evidence submitted. This includes both historical evidence they fail to address in their letter and new evidence from appointments I've had over the last year. There ended up being quite a bit of new evidence, even to my own surprise.
• I also submit all relevant supportive evidence, although some of it truncated for brevity, whether or not it might be in the case file. My reasoning for doing so is, firstly, that I don't know what they did or didn't receive from providers since there is no clear indicator of what they have or lack and some providers did fail to respond to their request. Since my initial filing in 2013, I have personally obtained and cataloged all of my records--and now have a strict practice of requesting them as they are created because I've found it sure is easy to forget all the different physicians you've seen in ten years time when you move as much as I have. Secondly, every piece of evidence I submit is labeled at the top and the parts that actually need to be seen are highlighted. All evidence is grouped for each of these six contentions. Lastly, I felt it would be easier for someone looking at my request to have all the evidence right before them and directly referenced. Once they're done, they can shred it for all I care, but for purposes of review they have everything they need in the packet I'm sending.
• I specifically address their reasoning with my own counter reasoning and why [i feel] the evidence clearly supports mine. In the three cases where they claim there is no record of complaint or diagnosis, I have tables with a row for each record of complaint and/or diagnosis, as well as tallied totals of that data.
• At the end of each section, I state exactly what I believe is fair and will accept as closure for that item. I'm asking for SC and 10% each for five conditions, and 30% for my right knee condition, which in total is roughly half of what I truly believe I'm entitled to according to the CFR and other VA guidelines.

I have a few more conditions I'll be filing for once I have the evidence I need. When I file for those, I will be submitting a letter much like this one with the fully developed claim. I'll put my reasoning, evidence, and expectations on the table from the start. I have no doubt that doing so will result in the best possible outcome.

Thanks again for all the feedback and knowledge, both here and in other parts of the forum. A lot of the good stuff that went into my letter came from information I found here at HadIt. This is definitely one of the best, if not the best, community-based knowledge sources for this stuff.

KC

KC,

Thanks for the update.

It all looks really good so far and you surely have put your due diligence in.

IMO - each claim issue submitted for SC and / or a compensable evaluation,

only needs, the issue/s, the dot-to-dot style of evidence presented,

correct application of 38 USC, 38 CFR, M21-1, to include (very importantly)

full compliance of the BOD when all the evidence is weighed to be, in relative equipoise.

If I remember correctly your goal for now is a R4R at the VARO level to include,

submission's of N&M evidence.

I still strongly suggest keeping a keen eye on your NOD time frame so as to preserve

your EED, for when you receive a positively adjudicated rating decision, granting your

request in full.

I commend you on your presentation.

[K_C]

Happy Veterans Day to all. Thank you for your service. I hope everyone can take a moment to be grateful for all those who have sacrificed in good faith service for the prosperity of others.

Carlie: Thank you for the encouragement, it means a lot, especially coming from you. In one of my items I did specifically ask that BOD be genuinely applied in contemplation. I'm not sure what EED stands for; can you expand that one for me? I've just barely begun to feel familiar with 38CFR Part 4. It's clear I have a long way to go. But, thankfully I've been able to pick up some breadcrumb trails from here and other places that have led me right to the regulations I needed to research and use in support of my argument.

KC

P.S. It's hard to see how anyone could miss an appeal cutoff when everyone you talk to is reminding you. I think that's a great habit for everyone to get into.