Reconsiderations

[FormerMember]

For your information:

https://asknod.wordpress.com/2015/10/23/varo-requests-for-reconsideration/

[pwrslm]

 

Change Date

July 15, 2015

This appears to be new info, recently changed rules on reconsideration.  Not much cited in the way of CFR or USC in any of this section F.

So far, they have put my conditions into pending disabilities, and no appeal info appears.  Click on view claim status there, and I see an open claim.  So far I am at collecting evidence, they have set up a new C&P exam for neuro/left leg according to peggy.  I didn't cite CUE in my 4138, only Colvin violation because they didn't rate my leg right and I cited 9 different examinations/consults in my VAMC Treatment file that contradicted their C&P exam.

Everything I found on reconsideration is located in M21 part 3 subpart II chapter 2, section F. 

Definition of Request for Reconsideration is as follows;

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 prescribed form is not required for a request for reconsideration. 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.D.

 

The basic info tells me what peggy told me, use a statement of the case form (4138).

 

The part to pay attention to is here;

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.

If you don't have new evidence, you need CUE.  If you do it wrong they send you a letter that says;

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). ... 2. File an appeal (notice of disagreement) of our prior decision.... 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.

or you can file NOD.

Without the new evidence showing their error, or a CUE documented,  you will  be denied reconsideration, the same as if you applied to reopen a claim that is past the appeal date.

 

[pwrslm]

Basically, I am under 60 days since my decision was made, have 10 months to appeal.  If this starts going slow, I just put in a NOD, plenty of time.  On the other hand, its moving pretty well, so far, so I am just going to sit back and watch it.  If I get what I asked for, it will keep my appeal from happening.

[broncovet]

38 CFR 42.38 Reconsideration of initial decision.

(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the mailing in the absence of contrary proof.

(b) Every motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. The motion shall be accompanied by a supporting brief.

(c) Responses to the motions shall be allowed only upon request of the ALJ.

(d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.

(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.

(f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the Secretary and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the Secretary in accordance with § 42.39 of this part.

(g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the Secretary and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the Secretary in accordance with § 42.39 of this part.

[lotzaspotz]

What is the difference between a reconsideration the vet requests vs. an NOD, which triggers a review of the decision anyway?  Is there a difference between a reconsideration and a review?  The NOD is critical to the appeal process, anyway, so why not just file the NOD and get a review from that?

 

[pwrslm]

Once I file an NOD, the VA's obligation to assist is gone.  From that point on, to the BVA, it is an adversarial situation.  Recon before that leaves them obligated to assist, as the 1 year appeal time frame still is running, as well as, (if it applies) the initial submission of the intent to file, and the 1 year time frame that I have to submit new evidence, is still (also) running.

If I take it to NOD, and the give me a bad decision (again) then I have preserved any rights that I have via due process for reconsideration and appeal.

[broncovet]

RECONSIDERATION MOTION DENIES COURT JURISDICTION

§ The Counsel for the Secretary of Veterans Affairs (Secretary) filed a motion to dismiss the appeal with the Court on December 15, 1998, pursuant to the Court’s holding in Pulac v. Brown, 10 Vet.App. 11 (1997) (per curiam order) because the veteran’s motion for reconsideration was received at the BVA one day before the mailing of the NOA to the Court. The filing of a motion for reconsideration renders the BVA decision nonfinal, therefore, jurisdiction remains with the BVA and the Court does not have jurisdiction. See Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994); Losh v. Brown, 6 Vet.App. 87, 90 (1993).

Source:  DAV Court Citations