Question About Request For Reconsideration

[Raza23]

In Dec. 2013, I decided my disabilities had gotten worse and decided to file for an increase. In Jan. 2014, a decision was made that increased the majority of my disabilities and I went from a rating of 70% to 90% however they decided that my 60% asthma rating didn't warrant a change and could actually be reduced to 30% but becuase there is no definitive proof of improvement they would keep it at 60% with change or increase. This floored me as I watched the process on ebenifits the whole time and it was stuck in the Gathering Information phase for pratically the entire process as they were waiting on third party documentation where the PFT was preformed via request of the C&P and I guess they never recieved it. The funny thing about this is I was sent a copy from the hospital that performed the test. It is my estimation that the VA never recieved it and made up some sort of false decision based on numbers they pulled out of the air. They claimed my FEV-1 was 40 to 55% but never stated specifically an actual number. On my copy I was sent my pre and post numbers were both 39% with no change.

With that said, no one since the time of the test in April 2014 at the C&P or VAMC could find any record of this PFT which leaves me to speculation on how did they decide this area of my claim. I was sent by my Va Doctor, becuase niether he couldn't find it in the system, to go and take another test which was completed in Feb. 2015. My FEV-1 for that test is 38% Predicted. I decided to get the appeal in asap.

A few days ago, I went to meet with my VSO in order to file a NOD in which I felt one of my conditions (asthma) was rated wrong and based upon the information he said it would be best to file a Request for Reconsideration. At the time it sounded good to me as it would be faster, however after doing some research here at hadit and elsewhere I am now a little leary that I could lose my EED on the original claim as it is really a reopened claim. So my question is was this the right path to take so far as a Request for Reconsideration? Should it have been filed under a CUE? Should I be worried about losing my EED with the provided PFT's dated back to April 16 (C&P test) and the Feb 2015 test (new evidence) or will the rater be smart enough to know that it was rated wrongly and the original effective date for Dec. 2013 should be the EED for retroactive pay?

[Buck52]

if you have the test from the hospital that preformed the test PFT of your 60%...you need to file CUE

& watch the dates you don't wont to run out of the time limit.

NOD would give ya a year.& preserve your effective date.

If you could do this is past/copy what there reason is and how they made there decision on your increase post it here

blob out your name and SS and personl info

Ms Carlie here on Hadit is good/expert with CUE's I'm not sure you have one? but I sure think they messed you around and that is clear unmistakable error

jmo

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

Edited April 6, 2015 by Buck52

[71M10]

FIRE THE VSO. There is NO reconsideration process at the RO level, it is a re-open with new and material evidence. From your time line information it is to late to NOD (decision became final 1 year after the decision date unless you already filed a NOD). Before you consider CUE, you need to know what evidence is in the file, request a complete copy of the c-file (to include all digital records) or request records added since your last copy request was fulfilled. If your RO is relatively close you could also ask for an appointment to review your file. You would probably only have CUE if the PFT results were in the file.

[Gastone]

According to Vet Lawyer Chris Attig, the VA just did a big unannounced change to Claims and appeals. I read that one of the changes is regarding VARO level Requests for Reconsideration. Very interesting reading, check it out at his Veterans Law blog. This guy is a big help, takes a lot of the guess work out of our claims.

Semper Fi

Gastone

[broncovet]

I agree with Gastone, but caution that a MFR may not extend your 1 year period to file a NOD. I am also skeptical of VA's new stuff, such as the MFR at the VARO level, but make the best with what you have to work with.

After you do the applicable research on MFR at the VARO level, then it appears you have the best of both worlds by filing a CUE and "New and Material Evidence" under 38CFR 3.156. Here is why:

The VA either has to say this is new evidence or not, that they had your evidence and considered it, or did not.

1. If they did have your evidence, then this suggests CUE.

2. If they did not have your probative evidence, then the appropriate response is for them to reopen your claim under 3.156.

[Philip Rogers]

I agree w/what's been posted, so far. A CUE may be your best bet. Was the PFT listed in the evidence section of your decision?? If not, they may not have had it or may have destroyed it. This is why it's best to hand deliver, w/a date stamped copy received by you at that time, or in lieu of that, sending a certified, return receipt requested copy, so that you can prove it was submitted.

For a CUE to be considered, the decision must be final, in that it must be over one yr since the decision. You can request that they CUE themselves, if it's been less than a yr.

pr

[Fat]

File the NOD......