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Reconsideration Procedures

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mcarter985

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Good Morning all,

I received my rating decision for PTSD and got 50% for it. The local Vet Center I've been going to for help promised me a letter to support my claim but I still don't have it (should get it next week). When I mentioned the rating I received the counselor was a bit upset and thought I should have been rated at least 70%.

I would like to submit a Reconsideration for the rating level and submit the Vet Center letter along with it as new and material evidence. My question is how do I do that? Submit a DRO? Is there a specific form for reconsideration? If I submit a DRO would I state I wanted a reconsideration somewhere on the form?

Any and all help would be greatly appreciated! For what its worth I was a medic in Vietnam with an Infantry outfit in 1969 with a combined rating of 80%...10% for tennitis, 60% for CAD (Agent Orange Presumptive) and 50% for PTSD.

Thanks!

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Many vets here have filed for Reconsideration at the RO level..and some have succeeded...however therequest does Not stop the NOD one year clock so mark your calender..

I filed NOd mere dayss before my NOD deadline after this type of request when it became obvious to me that VA was pretending to work on it but didnt.until I used a different approach,and succeeded in that claim.

read all of this carefully from M21-1MR

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."

Try to get support for this from your vet rep but make sure you have proof of anything they send to the VA.

Are you unem,ployed? If so did they eiother defer TDIU or send you a 21=8940 TDIU form?

Do you get SSDI and if so,is it solely for the SC conditions?

Have you ever applied for and been turned down by Voc Rehab due to infeasibility of Voc rehab due solely to you SC disabilities?

Go to the VA SRD (Schedule of Ratings here and familarize yourself with that 70% criteria.

I agree with the vet center rep that, even on it's surface,the rating seems too low.

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New & Material Evidence is the key for either the Reconsideration Request or a NOD DRO review or Hearing request.

Don't count on your Mental Health Clinicians recent statement to sway the Raters decision. There is a reason that the VA Clinician's DBQ Directive instructs your treating Clinician to hand off all requests for Mental Health DBQs to another Psychiatrist or Psychologist that is not involved in your treatment.

I think you would be well served, if you obtained a copy of your PTSD C & P DBQ, if you already haven't done so. You might even want to complete a PTSD DBQ on your own and compare it to your C & P DBQ. Your answers to the questions should be the same, right? How the C & P Dr determines your level of disability should be quite informative. The C & P Dr's opinion as to your degree of disability will trump any non C & P Dr's disability opinions, when it comes to PTSD.

No matter how you proceed, remember the NOD Clock is ticking down. Compelling New & Material Evidence, unless there is a CUE involved, is just about the only way to get the AWARD you think you deserve.

Semper Fi

Gastone

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Thanks Berta and Gastone...I don't understand why the C & P should trump my treatment's notes as the doctor at the C & P made a determination after 20 minutes whereas the Vet Center folks have known me for months through treatment but I understand that's just the way it is.

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I recently sent in a request to reopen a claim that was denied in May,the reason and basis for the denial stated I was not on active duty at the time of my injury, my VSO looked at what the Va viewed to make there determination and no where in my service records showed my AT reserve 2 week training period, by luck I was going thru some boxes at home and found my copy of the orders to report and a pay voucher so I submitted this as new and material evidence to reopen,It showed on ebenefits as reopen for about a month then just disappesred all that shows is the orginal closed claim in Histirical claims, I called my VSO and the 800 number and both said it is still open and under rconsideration, will the Va take a reopen and treat it as a reconsideration ? is that the reason it isn't showing on Ebenefits?

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If the denial was in May this is technically a Reconsideration.

Did the VSO file it that way, referring them directly to that evidence?

GOOD for you for taking the time to find that order and pay voucher!

Ebenefits is not always a reliable source for info.

A Reconsideration like this does not stop the NOD clock (the one year appeal deadline)

On the denial in the upper right hand corner there should be a numeric and initial code.

I always send stuff " Attention to" and then put the Initials there in the submissions because this is usually the last person who wotked the claim and the claim might still be on their desk.

I always use USPS priority with tracking slip.

But I am sure info can be downloaded at ebenefits site too.

It is miserable to seek evidence. I have over 20 years of VA crapola in manila folders.

BUT often well worth the time it takes to go through everything, even more than once.

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Bertha, Thanks for your reply, My Vso sent in a form 21-526 to reopen with new evidence he did say it was going to go thru a new development, I had orginally sent in the orginal claim with a DBQ and IMO nexus from a private PHY. I hope that the evidence I submitted will be enough to prove my AT dates they did have a copy of my hospitol medical report from the on base Hosp. of the injury and how it happen in my service record and it was clearly on the date in question by the Va. on another note when my Vso looked at the emails from the RO it said claim cancelled but in his open claims tab it showed that my claim was open in reconsideration and in the exprees lane,he thinks someone at the ro accidely put it was cancelled which made it not show on ebennies anymore, and I do see the numeric code on my denial 321/TB.

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