Reconsiderations

[FormerMember]

For your information:

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

[Buck52]

Furthermore, it is not always clear if the Veteran is actually filing an appeal or not.  For example, use of the word “reconsider” may or may not mean disagreement.  We try to clarify intent with the Veteran or Representative, but even then, the Regional Office may consider the veteran’s statement to be a new claim and issue another Rating Decision, but then BVA considers the same statement to be a missed NOD and Remands the issue for the Regional Office to send an SOC.

[lotzaspotz]

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.

Ok, just a few thoughts that are subject to correction, if needed.  You can submit new evidence up until the Board makes a determination, that is, after you file the NOD, Board appeal, etc.  You can send the Board a waiver of review of new evidence so it doesn't send it back down to the RO to disregard or mishandle, hopefully saving you some time.  As long as the appeal is within the VA Dept., including the Board, the environment is technically supposed to be non-adversarial (but I treat it as adversarial as soon as the initial claim is filed).  It isn't supposed to become adversarial until it leaves the VA and enters the DOJ arena in the form of the CAVC that it then becomes adversarial.  The VCAA notice from my experience has been useless, as the so-called assistance we've been offered has always been a canned statement that can apply to any and all claims, and not specifically tailored to our specific circumstances.  I've had differences of opinion on effective dates changed to our benefit just by filing an NOD on that point.  That's why I asked what is the difference between a review auto-generated by an NOD vs. a reconsideration request.

[burn2learn]

I have a claim that was reopened for reconsideration...with new evidence. Its now at prep for notification per ebenefits. Note the screenshot. 

[Buck52]

I am not sure where I read this but once you have  filed a reconsideration the claim starts all over and you get a different EED

its true the NOD keeps the claim alive so to speak  so in my opinion NOD is the safe way to go.

I am Researching!

 

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

[FormerMember]

Simply finding the word "reconsideration" in regulations doesn't create the obligation. Part 42 that BroncoVet alludes to above is excerpted from a regulation that involves fraud. As such, it is not on point. It does, however, illustrate the existing Motion For Reconsideration(MFR) at the BVA level. The humor in all this from my perspective is simple. Why would you want to wait around for up to a year in the hope that the VSR (not a DRO, mind you) will change his/her mind? If the error was blatant and glaringly obvious, a NOD will still provoke the same de novo review -and from a higher, more seasoned source such as an RVSR or DRO. A NOD will get you in line for a BVA appeal sooner than waiting for a reconsideration that might be denied. Reconsiderations should be used by homeless/financially challenged Vets who are ably represented by competent legal help. It is a quick pathway to resolving what should be a slam-dunk claim. It can only be advantageous to you if your  housing situation/medical status is precarious. VA will always move these claims to the top for immediate action. Otherwise, Lotzaspotz is dead on. Why wait for a reconsideration (and its attendant de novo process) when you can file the NOD and accomplish it sooner if they deny?

<<<<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.>>>>

Always remember, the duty to assist rests with the trier of fact (RO and BVA) in a claim. They cannot cease in this regard unless it is filed as a CUE. CUE has its own set of codicils. Basically, there is no duty to assist in a CUE claim because a clear and unmistakable error can only involve a closed set of facts that led to the denial. To simplify, calling CUE freezes the record as to what was contained in it when you utter  the word "CUE". You cannot add new evidence to a CUE claim.

I'm not sure where pwrsim unearthed the argument that VA suddenly is off the hook for the duty to assist once a NOD is filed. That is not the way the Statute and Regulation read. Vets enjoy a much higher level of justice and the duty to assist never ends.  Nonadversarial,  Veteran friendly law with a full duty to assist doesn't cease until you get to the CAVC and the Fed. Circuit. Additionally, VA is not obligated to consider the benefit of the doubt argument in CUE. In that regard only does the duty to assist cease. 

 I beg each and every one of you to be very careful in dispensing advice here. Telling other Vets the duty to assist evaporates when the NOD is filed is incorrect and can harm a Veteran's claim. Likewise, always cite to the regulation or statute that your argument rests on so that others reading it can use the information. Shafrath v Derwinski 1 Vet app.589 (1991) is the go-to cite of the VA's duty to assist. It reinforced precedence re the duty to assist for VA claims in 1991 and has never been overthrown. If anything, newer precedence has built off of that and granted us even more and stronger protections relating to the duty to assist. A classic example of this is the most recent CAVC ruling in Gagne v. McDonald  decided ten days ago. I attach it below to illustrate what the real duty to assist  means in a claim. 

 There is a place for reconsiderations in the legal amphitheater but it is narrow and involves extreme circumstances I discussed above. VA's new technique to reduce the backlog by "developing to deny" your claim to hurry it out the door and off the books is not going to aid you time-wise in a request. That advice may not apply to small ROs like Fort Harrison and Sioux Falls where the backlog is not so stupendous. For the rest of us, a reconsideration or a NOD is still an equally slow boat to China. Simply put,  the difference between a NOD and a reconsideration will be one year or more less waiting for an appeal at the BVA if the reconsideration is denied.  Each Veteran, based on the strength and unique facts of his/her claim, is the only one who can decide which path to choose. There is no blanket set rule or advice that covers all of us.

Gagne_14-334.pdf

[broncovet]

I dont recommend a reconsideration unless there is a compelling reason.