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?

[Gastone]

Went back and read the M21-1 Change effective 03/24/15. You must have "New & Material Evidence" submitted with the RFR and it definitely does not extend your NOD filing deadline. Seems pretty close to the old N & M Evidence triggering the claims denial review by a Senior Rater or DRO that has been available for just about forever. This seems to make it official regarding you must submit the N & M Evidence or don't even ask for a VARO Reconsideration.

Semper Fi

Gastone

[Philip Rogers]

I'd ask them to CUE themselves, as it may be faster than the 2yr NOD processing time. jmo

pr

[knap-sack]

Philip the way I looked at the denial on parts of my cliam was I have a year to gather new evidence. And I did but my foia request to st Louis has not provided me with none of the paperwork asked for.

I got xrays mri and documentation from doc on condition s..

After I got my cfile I saw how horrible a job the navy did documenting my condition s.

[Berta]

I am glad you heard from Chris Attig because he has stated here some time ago that there was no such thing as a reconsideration at the RO level.

In essense he was right, but many of us have filed for reconsideration at the RO level and some here have won.

I think the only reason this regulation is now in 38 CFR, is because many claimants have exercised their right to file

under a regulation that has always existed tat the BVA and is right on the back of the appeal form.

What is good for the BVA is good for the VARO.

Thanks to any of you , as well as me, for filing for Reconsideration requests over the years, at the RO level.

I never received anything from VA on my last recon request that stated it was not a regulation.,because it always was...at the BVA.

Edited April 6, 2015 by Berta