Official Request For Reconsideration At Varo Level

[carlie]

I believe new instruction has been written that supports and

provides for an Official Request for Reconsideration

at the VARO level.

I am having computer problems and can not copy and paste

right now, so perhaps someone can pull the info up and post it here.

It is

M21-1,PartIII,Subpartii,Chapter2,SectionG

1. Request for Reconsideration

Change date - March 24,2015.

Hope this helps a veteran / claimant.

[Vync]

Per your request...

http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptii/ch02/M21-1MRIII_ii_2_SecG.docx

Section G. Requests for Reconsideration 1. Requests for Reconsideration

Introduction

This topic contains information on claims for reconsideration, including

• definition of a request for reconsideration
• initial steps for handling a request for reconsideration
• determining whether to include appeal rights in the decision notice, and
• letter to a claimant who provides no evidence, or evidence VA has already considered, in support of a request for reconsideration.

Change Date

March 24, 2015

a. Definition: Request for Reconsideration

For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired).

A request for reconsideration differs from a claim to reopen in that the decision at issue in a claim to reopen has become final.

Reference: For more information about claims to reopen a finally denied claim, see M21-1, Part III, Subpart ii, 2.E.

b. Initial Steps for Handling a Request for Reconsideration

The table below describes the initial steps for handling a request for reconsideration:

If the claimant submits ...

Then ...

evidence VA has never before considered

refer the request to either the rating activity or authorization activity (whichever made the decision at issue) for reconsideration.

no evidence but makes reference to available evidence that VA has never before considered

assist the claimant in obtaining the evidence.

Note: Follow the applicable instructions in this table once VA receives the evidence.

Reference: For information about assisting claimants in obtaining evidence to support their claim, see M21-1, Part III, Subpart iii, 1.C.1, 2, and 3.

• no evidence, or
• evidence VA has already considered

send the claimant the letter shown in M21-1, Part III, Subpart ii, 2.G.1.d.

Important:

• If, when the claimant initially filed the claim for which he/she is requesting reconsideration, VA provided the claimant with Section 5103 notice for the contentions associated with that claim, there is no requirement to reissue the notice upon receipt of the claim for reconsideration.
• Upon receipt of a request for reconsideration, establish an end product (EP) 020 with the ‘Reconsideration’ claim label. This will ensure that the intent to file (ITF) batch process will not update the status of an ‘active’ ITF to ‘claim received’ upon establishment of the EP.
• If additional conditions are claimed at the same time as the reconsidered issues, do not establish an EP 020 with the ‘Reconsideration’ claim label, but instead establish the appropriate EP based on whether the claimed conditions constitute new, increase, or reopened claim.

Example 1: Veteran receives a decision notice on April 4, 2015, stating that their claim for service connection for a right knee condition is denied. On May 10, 2015, the Veteran submits an ITF for compensation. VA receives a letter from the Veteran on June 16, 2015, requesting a reconsideration of the denial of the right knee condition, and simultaneously submits medical records that have not been previously considered (new evidence).

In this example, an EP 020 with the ‘Reconsideration’ claim label would be established, in order to ensure that the current status of the ‘active’ ITF received on May 10, 2015, is not changed to ‘claim received’ when the batch process runs the night that the EP 020 is established.

Example 2: Veteran receives a decision notice on April 4, 2015, stating that their claim for service connection for a right knee condition is denied. On May 10, 2015, the Veteran submits an ITF for compensation. VA receives a complete VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on June 16, 2015, requesting a reconsideration of the right knee condition, along with new medical evidence pertaining to the right knee, and also claims service connection for a back condition on the VA Form 21-526EZ.

In this example, an EP 020 with the ‘New Claim’ claim label would be established, in order to ensure that the that the status of the ‘active’ ITF received on May 10, 2015, is changed to ‘claim received’ when the batch process runs the night that the EP 020 is established.

c. Determining Whether to Include Appeal Rights in the Decision Notice

Include appeal rights in a decision notice issued in response to a request for reconsideration only if VA received or obtained new evidence in connection with the claim for reconsideration. Include the appeal rights and a VA Form 21-0958, Notice of Disagreement, regardless of whether or not the decision at issue changed.

Important: If the inclusion of appeals rights in the decision notice is appropriate, the claimant has one year from the date of that notice to file an NOD with the corresponding decision.

d. Letter to a Claimant Who Provides No Evidence, or Evidence VA has Already Considered, in Support of a Request for Reconsideration

If a claimant who, in support of a request for reconsideration of a previously denied claim, provides

• no evidence, or
• evidence VA has already considered,

send them a letter containing the language below.

We have received your request to reconsider your claim for <INSERT CONDITION(S)>. We previously made a decision on this claim and notified you of this decision in our decision notice dated <ENTER DATE OF DECSION NOTICE>. This decision notice included a VA Form 4107, Your Rights to Appeal Our Decision, which explained your appeal rights.

What Do You Do Now?

We will not take further action on your request unless you do one of the following:

1. Submit or identify new evidence related to the previously denied/decided issue(s). We have enclosed a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, for your use to identify any medical records that we do not have in our possession.
2. File an appeal (notice of disagreement) of our prior decision. To do so, you must submit to us a notice of disagreement expressing your dissatisfaction or disagreement with our prior decision, specifying which issue(s) or what part(s) of the decision you disagree with. You must submit a VA Form 21-0958, Notice of Disagreement, if the VA Form 21-0958 was provided to you as part of the decision notice for the decision that you would like to appeal. If you do not agree with our decision, please reference the What You Should Do If You Disagree With Our Decision section of the decision notice referenced above, which will provide you with information on what is needed to submit a notice of disagreement.
3. Identify a clear and unmistakable error in the prior VA decision. Clear and unmistakable errors are undebatable, so that reasonable minds could only conclude that the previous decision was flawed at the time it was made.

Where and When Do You Send the Information or Evidence?

Please mail or fax all correspondence to the appropriate address listed on the attached Where to Send Your Written Correspondence chart. Please put your full name and VA file number on the evidence.

If you are…

Then you have…

submitting or identifying new evidence…

one year from the date of our decision notice <INSERT DATE OF DECISION NOTICE> to submit new evidence.

filing an appeal…

one year from the date of our decision notice dated <INSERT DATE OF DECISION NOTICE>.

claiming a clear and unmistakable error…

no time limit since there is no deadline for filing a clear and unmistakable error.

Important: Clear end product (EP) 400 after sending the letter. Do not maintain EP control for a response. Further action on the claim is only required if the claimant responds to the letter.

[broncovet]

This may work, but probably the only way is reconsideration WITH "New and Material Evidence".

You see, the VA does not want us to keep submitting reconsiderations hoping to find a "Veteran friendly" rater. However, if we have "new" evidence, that is, evidence not seen by the last decision maker, this would make great sense.

[Berta]

This is a great link Vync.

I didnt even know the VA formally changed this reg in 2015.

We have a lawyer member here who argued about a year ago that there are no ways one can file this type of request (except on a BVA decision , as the appeal info that comes with a BVA decision says due to their BVA regulations .)

But I have advised doing this at the VARO level for years.

BVA regs are written differently then the usual ones we are familiar with but so what....they are still binding on the VA.

The last time I did this ( filed for recon request on a CUE denial) it only brought th a plethora of meaningless rhetoric (and even a regulation they made up) from my VARO, to discourage me so I filed NOD at practically the last minute.

But I had been suffering from an illusion, thinking they would actually grant the request and then grant the CUEs because my evidence was solid.

I succeeded on these cues but that took the Nehmer RO to award it ( 2 CUEs, 4 legal errors) in 2012, right before it was set for BVA transfer.

The CUEs (one on IHD,one on 1151 CVA) were filed in 2003 and 2004.

Yet others here have had some success with recon requests, as long as they mark their calender, to make sure the NOD is timely if they don't get a resolve of this request within one year after the decision.

Personally I am now enamored of the GCY tactic......

Asking them to CUE themselves within the appellate period...if they have made critical and detrimental errors.that deprived a claimant of a proper monetary award.

This tactic, for me, also means I can do something right away as an effort to keep my issues off of the hamster wheel.

Of course the 8 years or so those other CUEs took was absolutely ridiculous so one never knows how long they will take.

My December 2011 GCY claim was awarded under this type of CUE in 3 weeks.

The December decision was so ludicrous that I raised plenty of Hell.

It was funny when I called the 800# and the woman not only confirmed the claim had been denied, she also was surprised to see a recent notation that it had been awarded. the same claim ...all within 3 weeks.

She wasn't supposed to tell me of the award.I guess she couldn't help herself and said she never say anything like that before.

A GCY claim (CUE claim filed in the appellate period)can be a TTOOB maneuver (Take Thumbs Out Of Butts)

.

A claimant could file both...reconsideration and CUE within appellate period.If they wanted to.

[Buck52]

a. Definition: Request for Reconsideration

For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired).

Question How does a claimant request a reconsideration if the decision is not be decided? Or become final?

don't make any sense ?

......................Buck

[k5one]

c. Determining Whether to Include Appeal Rights in the Decision Notice

Include appeal rights in a decision notice issued in response to a request for reconsideration only if VA received or obtained new evidence in connection with the claim for reconsideration. Include the appeal rights and a VA Form 21-0958, Notice of Disagreement, regardless of whether or not the decision at issue changed.

Does this give the option to appeal the reconsideration, and will it give you a year after the reconsideration to appeal, when N&M Evidence is submitted. Not sure anyone knows, but I believe that would definitely help. I guess what I am trying to ask is - will this give you a new appeal deadline?

In my case I submitted N&M Evidence in March, and my current appeal deadline is in July. I plan on appealing in July, if the N&M Evidence doesn't change their decision, or the Reconsideration isn't completed prior to the deadline.

[Guest]

The crazy one here

Buck asked?

a. Definition: Request for Reconsideration
For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired).


Question How does a claimant request a reconsideration if the decision is not be decided? Or become final?
don't make any sense ?

Buck, A decision has been made but the veteran has one year to file a NOD or s/he can file a request for reconsideration.

For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired).

K5one

Determining Whether to Include Appeal Rights in the Decision Notice

Include appeal rights in a decision notice issued in response to a request for reconsideration only if VA received or obtained new evidence in connection with the claim for reconsideration. Include the appeal rights and a VA Form 21-0958, Notice of Disagreement, regardless of whether or not the decision at issue changed.

Does this give the option to appeal the reconsideration, and will it give you a year after the reconsideration to appeal, when N&M Evidence is submitted. Not sure anyone knows, but I believe that would definitely help. I guess what I am trying to ask is - will this give you a new appeal deadline?

In my case I submitted N&M Evidence in March, and my current appeal deadline is in July. I plan on appealing in July, if the N&M Evidence doesn't change their decision, or the Reconsideration isn't completed prior to the deadline.

Once a decision is made, a veteran should have the one year appeal rights. I think that it would behoove a veteran to file the NOD on the original claim if the veteran is dissatisfied with the new rating decision or if the request for reconsideration is not completed before the one year date. It is always best to cover your effective date.