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Filing A Reconsideration Vs. A Nod At The Ro Level


pacmanx1
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Question

Please keep in mind that filing a request for reconsideration for an Earlier Effective Date at the RO Level does not preserve the original effective date of a claim. In order to preserve the original effective date the veteran must file a NOD within 1 year of the original rating decision.

Filing a request for reconsideration at the RO Level is asking VA to Reopen your claim. This rating decision will most likely have a new effective date. If and I say If this request for reconsideration is completed withing a years time. The veteran will still have to file a NOD of the original rating decision to get his/her earlier effective date. If the request for reconsideration is not completed within 1 year, the veteran must still file a NOD to preserve his/her Earlier Effective Date.

The bottom line is, there is no real thing as a request for reconsideration at the RO Level. Even though the veteran's evidence would warrant the Earlier Effective Date, I have seen VA force the veteran to file a NOD and go the appeal route.

Hope others chime in.

What are your opinions or am I just wrong and off.

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Pete992, your assessment was excellent.

I went over one of my past posts because we have discussed this topic here many times.

I said:

"Posted 20 October 2014 - 09:32 AM

I am pretty sure my 1998 DIC award was based on a reconsideration request.

Because they had failed to consider my FTCA settlement papers in the first or 2 denials. That claim never left the VARO.

My last Recon request they stalled on and I had to file a NOD.(Recon request on SMC CUE denial)

The Nehmer people awarded that claim (it was a CUE) in a mere 3 weeks.

We have had others here whose reconsideration requests did garner them an award but the VA these days probably just sits on these requests hoping our NOD time frame will run out."

It took the Nehmer Philadelphia RO a mere 3 weeks to award ,in 2012, a CUE claim I filed in 2003 and a CUE I filed in 2004.

The Buffalo VARO appeared to be working on my reconsideration requests until I realised ( after their last response which was ridiculous) that they were hoping I would not file a NOD in time.

My theory is this.

Say a veterabn has ordered an IMO but does not receive it prior to getting a denial and it is favorable to his/her claim.

In that situation I would think a reconsideration request, that includes a copy of the IMO, would be in order.

Or say the veteran's SSDI award is critical to a TDIU cliam. The VA is aware that the vet gets SSDI but fails to get the SSDI info prior to the denial.

If the veteran can make sure the SSDI sends the VA the info they need ASAP,. that evidence could prompt a valid reconsideration request.

(This is what happened to me in 1997.The VA had failed to obtain the veteran's SSDI award solely for PTSD.

I had filed an accrued claim because my husband died prior to his PTSD claim for a higher rating (he was at 30%)

and although the DAV told me both of his pending claims had died with him, I knew they coud be resurrected.

The VA also had failed to consider his psychiatric records to incude 6 specific psychiatric tests, hynotherapy info, etc etc etc.

I went right over to his shrink at the Bath NY VAMC with the denial and his SSDI award letter. The doc said he would write a letter to the VA,and gave me and the VA copies of his pstychiatric assessments, and woukd tell them in the letter that I had shown him the veteran's SSDI award for PTSD.

I asked for reconsideration on the denial ( sending the psyche test records and SSDI award myself, not knowing if the VA doc would really send them a letter) but suddenly, in mere weeks, I got the accrued 100% P & T PTSD award letter, that referenced the letter and medical info they got from his VA shrink.. a successful reconsideration.but only because I went right over to see his psyche doctor at the VA.

The award letter used a very favorable date from the SSDI award.One year prior to my husband's actual claim for PTSD increase and 3 years prior to his death..

Also they erred on the very first and only experience my daughter, a veteran , had with them,

They awarded one month of Chapter 35 education benefits , even though her application and enclosed DD214 showed they should have awarded her 7 additional years of Chapter 35 entitlement.(based on her mil service)

She said the NOD I prepared for her , she recalls, also was a CUE claim first ,then I added the NOD as well, and also was a reconsideration request.

The VA corrected that error in mere weeks.

That was about 5-6 PCs ago and I dont have a copy of whatever I wrote for her.

In a case like that ,a reconsideration would be in order and/or a CUE claim as well.

BUT, say the VA failed to consider probative evidence, never even mentioning it in the decision.

In that case I would think a claim of CUE (within the appeal period) would be valid...meaning

A CUE filed , citing 38 CFR 4.6 , as the regulation they broke in determining the decision.

"§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. "

Although the Philadelphia Nehmer awarded the original CUE I filed, they also made another CUE in the decision, and forgot to pay me 100% under 1151 for an additional 16 months, as an accrued benefit. I had to file a NOD in time in 2013 on that CUE claim ,but I also requested a NOD extension for good cause, (not that I really want an extension) because any decision , even an award letter, that is clearly erroneous, based on VA case law and regs, to the claimant's detriment, affects our legal rights, and prevents us claimants from filing a proper NOD, that should be based on a legal decision.

This is how I handled the NOD:

1. NOTICE OF DISAGREEMENT with January 17th,2012 VA decision

AND

2. Reminder of my October 28, 2012 Request for VA to CUE itself on Part of their January 17th 2012 decision to me..... sent to both VAROs above …. (enclosed as Exhibit A ,7 pages)

AND

3. Request for Extension of formal NOD deadline, as cited within M21-1MR, Part 1, Chapter 5,

Section B under (d) , and 38 CFR 3.109 enclosed. as Exhibits B & C 2 pages

I believe I am unable to properly respond via NOD to the January 17, 2012 decision,(first and second pages enclosed as Exhibit D) as the CUE issue I raised in October 2012, (as enclosed ) has not been addressed yet by the VA.I feel this is a significant reason, which shows good cause ,for VA to honor this request and if the request for extension of NOD deadline is denied,please consider this as my formal and timely NOD regarding the January 17,2012 decision I received. Exhibit D 2 pages

I can appeal any potential extension deadline denial with the BVA.

Of course if the CUE issue I raised in my October 2012 requests to both above VAROs, is resolved with a proper decision regarding the clear and unmistakable error I raised in my October 28th,2012 letter to you , then I would have no need to consider any NOD deadline extension or any extension denial.

The legally erroneous statement on page 2 of the January 17th,2012 decision is thus:

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. “ as within Exhibit D

That is wrong based on all medical and legal evidence in VA's possession at the time of the veteran's death."

I referred them to all the evidence I had sent in with the CUE claim, I filed on the Nehmer award, all which was in VA's possession at time of my husband's death and all which they had when they rendered their AO IHD award and 1151 award decision in 2012.

I didn't list the evidence here (13 Exhibits) but will if anyone wants to see it.

A reminder regarding 1151 claims.

If a veteran has 100% direct SC for one disability and then is awarded (even posthumously ) 100 % for a Section 1151 disability, the VA cannot combine the awards but must pay the 100% 1151 separately from the direct SC award.

The VA paid me 100% Accrued for PTSD on 1997.

I proves CUE in a 1998 decision and that is why the 2012 Nehmer decision and retro for the AO IHD included the 6 months for the 100% under 1151.....which should have been a total of 22 months at 100% under 1151.

.

Edited by Berta
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Gee, after I posted "my theory", I meant the evidence the VA didn't have at time of denial decision, should be presented as Reconsideration request within the One year Appeal period, marking one's calender as to the NOD deadline, so , if the VA does not award based on the new info, they still have time to preserve their EED by filing a timely NOD.

My initial AO IHD Nehmer claim of 2010 was denied but they fixed that fast because I filed a CUE yourself claim via Fax and via IRIS under the Complaint section.

The denial actually says (I still cant believe how dumb some of these people are)that my husband, an incountry combat veteran, did not have evidence is his IHD in his SMRs.

WTF?

How many incountry Vietnam vets had IHD noted in their SMRs?

Probably none of them.It is a Presumptive AO condition anyhow.

My IRIS was pretty strong and VA Central called me up and this got fixed fast.

One thing is for sure Pete, I have received over the past 2 decades some of the most ridiculous denials I have ever seen.To no avail because those denials turned into awards.

I am not one to sit on my thumbs and piss and moan over this VA crap , I take action ASAP, and I believe in many situations we have to act fast to get things squared away with the VA.

I suggest anyone filing a reconsideration request or CUE on a decision within the appellate period should put Attention to: and then put the initials that appear in the numeric alpgabetized code to the upper right hand side of the decision after the Re: on the letter, in the letter you send to the RO.

This is the initials of the last person who worked on your claim and probably is the rater and this way the claim (hopefully) will get right back to them and it might even still be on their desk.

Some VSO POA reps have Reconsideration templates. The DAV does and I think VFW does as well.

So even though the BVA has regs for filing reconsideration motions, what goes for the BVA goes for the ROs as well.

Edited by Berta
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I have been approved for an increase from 40% to 50%, my question is, how do they factor the retro pay? Will I receive the new amount times the months since I applied or will it be the new amount minus the old amount all ready paid to me times the months since applied?

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The new amount minus the old amount all ready paid to me times the months since applied. That is only if VA get the effective date correct.

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Folks,

I know this issue (reconsideration) gets asked a lot. In last few weeks, the VA amended the VA Adjudication Manual to include reconsideration of an Rating Decision before the AOJ. Worth a read so everyone is on same page at M21-1, Part III, Subpart ii, 2.F (August 2015). I uploaded section at http://legalnewsyoucanuse.com/va-benefits-news/va-reconsideration-of-an-initial-rating-decision-amended-va-adjudication-manual/ I could not figure out how to upload directly onto hadit.

Cheers

Seth

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So i guess my question is.. this regarding effective dates and when a reconsideration is triggered vs NOD, etc.

You have to request a reconsideration for that to be initiated vs say filing your NOD and asking for BVA appeal, DRO, etc correct?

Because with the reconsideration the effective dates get a little snafud...

Effective Dates:

When new and material evidence is submitted within the appeal period or
prior to an appellate decision with regard to a claim for increased
evaluation, the effective date for any increased evaluation is the later of the
following dates
• the date on which the facts establish the increase in disability occurred, or
•the date of the original claim for increase.

That means if a Veterans filed for a knee injury, was denied and then went and got an IMO that SC'd that condition, the VA Accepts that and grants the claim, his/her effective date would then be when the "facts" established the increase, which in my interpretation would be when the IMO evidence was submitted and received by the VA (perhaps im wrong) and not the initial date the claim was filed?

So my question is why would anyone want to file for reconsideration vs just going traditional route of NOD?

It seems like reconsideration is a useless middle ground.

- Reopen a claim (acknowledging and accepting the finality of the decision, losing earlier effective date)

- Reconsideration of claim (not acknowledging nor accepting the finality of the decision, probably losing earlier date, but slightly less loss than a reopening)

- NOD, not accepting or acknowledging the decision and keeping earlier effective date.

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