Reconsiderations

[FormerMember]

Dear Hadit members,

After reading about 500 discussions on "Motions for Reconsiderations", I finally felt the spirit within move me to write about it. I researched everything from the M21 to 38 CFR in its entirety. Here's the report. My dogs were extremely instrumental in helping me frame the discussion. Not unexpectedly, I had occasion to sneak up on a VSO from a Tacoma, Wa. VSO and lay it out for him from the standpoint of a prospective Veteran  looking for representation. He jumped in with both feet and heartily encouraged me to go the recon route prior to a full-blown NOD. His rationale? "Well, with the new FDC method, they're getting the backlog out of the way and they have more time to review a decision again before you reach the one-year suspense date to file the NOD. This is a great way to avoid a long appeal or wait a year for a DRO review". 

Huh? If you have to wait a year for a DRO show (with or without a hearing), how is it they have time to burn on a MFR? He didn't have an answer. He shrugged his shoulders and said "That's how it works. I don't make the rules." For the record, I haven't met anyone who got a genuine MFR done in that magic 12 months before a NOD filing except in the examples I wrote about. As most of you know, my idea of a MFR is an Extraordinary Writ of Mandamus. I guarantee you'll get some action using that method in 45 days if you've been in a holding pattern for two or more years waiting for a SOC or an up or down following the submission of N&M E.  The backlog didn't go away. It migrated to DROs, certification and the BVA.

There's a technique for any project. Choosing the right one isn't hard. Rest assured that if there was a shortcut, everyone here would have heard about it by now and it would be adequately described in the M21 for dunce raters to follow.

http://asknod.org/2016/01/16/vsos-lets-send-in-a-request-for-reconsideration/

 

[broncovet]

Chris Attig seems to agree with you, as do I.  There are 3 words to sum up MFR:  Don't Do it. 

 Mostly, the safest way is not to do an MFR.  While I will agree it MAY work, but the chances are slim and it it often results in  missing out on the 365 day period to file a NOD.  

Whether you do an MFR or not, dont let that NOD year come and go without filing your NOD.  The VBM does discuss the MFR, but it seems pointless or even counter productive..you think you have filed a NOD while you have not.

http://www.veteranslawblog.org/va-rating-decision-appeal/

[Guest]

The crazy one here, Asknod and Bronco, I actually helped a friend file a request for reconsideration at his local RO after getting a rating decision. He disagreed with the percentage they gave him and wanted to file a MFR and I told him that it would be best to go ahead and file a NOD.  Believe it or not VA actually processed the MFR within eight (8) months but when they granted the veteran claim VA based it on the MFR and not the original claim. So because the veteran was still within his twelve months (12) months one (1) year from the original claim I told him that in order to get his original claim date and make VA go back even further that he had to file a NOD and request VA consider the evidence of record prior to both the original claim and the MFR.  The current NOD is still pending so the veteran got real lucky that VA did complete his MFR but now he has to wait for VA to go through the claim again for the correction.

The point is if a veteran files a MFR to the local RO he/she better keep an eye on the NOD time line and if VA makes a new decision that the veteran disagrees with, the veteran has to file a NOD on the original claim.

[FormerMember]

Pete, no one is crazier than anyone else here. Allow me to revise and extend my comments. You always have the right to request VA reconsider anything they decide negatively. You may call it a plea for sanity, a rethinking of something that is obviously erroneous or a request to reaccomplish a defective train of logic based on a lack of evidence or misinterpretation of what was before them. You are free to do this any way you wish-be it a MFR bottle in the ocean or a NOD (or Admin. review-see below).

Over the years, I have caught raters utilizing the wrong regulations, ignoring the right ones or making equally obvious errors regarding case or controversy. The problem arises when they have no time to revisit the error short of the Veteran filing a NOD. There are exceptions to every rule. A smaller RO like Sioux Falls or Fort Harrison is easier to approach in this regard before a NOD is filed. It works best if the letter requesting the MFR is sent within days of the receipt of the defective decision. Sometimes it works, sometimes it doesn't. Some raters feel that once they have spoken, the next words out of their mouth are "SOC". You cannot reason with them. There is no one-size-fits-all for this problem. But make no mistake, sir. There simply is no "Request for Consideration" or similar legal tool you can file that will give you the assurance that VA will reconsider within the 12 months accorded you to file the NOD. That is the error I point out. 

I actually have high hopes that VA would someday move towards a true Court where a Veteran could arrive and present his case in person with witnesses and corroborative evidence. VA would be free to rebut the evidence and or present their own doctors to inveigh and testify otherwise. After this, a decision that was clearly and unmistakably correct would be rendered. You would be free to add rebuttal evidence you developed during the "trial" so as to avoid even needing a NOD. This semi-ex parte proceeding need not be formal like a Perry Mason trial with "sustained" or "overruled" shouted repeatedly. What it might do is give more weight to a gastroenterologist's nexus letter who has 25 years in the business over a VA examiner with an ARNP suffix opining that the hepatitis was not identified until 2001 and therefore that is the beginning of the disease. You cannot apply Maxson v. Gober to every set of circumstances. Hepatitis C takes three decades to manifest. Unfortunately, VA Examiners are not gastrodcos so we end up with these defective ratings.  Allowing poor, uneducated misleading theories into the process simply forces hopeful Veterans into the untenable position of thinking it can be fixed quickly short of a full-blown NOD. Having VSO reps touting this as a viable panacea where it simply does not exist is deceptive and dangerous.

We all know a NOD  almost guarantees a 16-20 month pause in the process but it does entail a new decision which is, essentially, a motion for reconsideration. A DRO review is identical inasmuch as it also grants a de novo decision but takes 3 years if you're lucky. Holding out the unreasonable hope that this can be repaired by writing in and asking for it is not viable for most of us. Surely you realize no two claims are alike to any degree such that one sets the metric for all that follow. What I perceive happened in your case is the self-styled "MFR" your friend submitted merely brought to the attention of the rater the error he committed. The wrong would have been righted eventually. The "MFR" merely called attention to the error short of having to actually file a true request for Administrative review in the form of a NOD.

There are innumerable legal mechanisms that most Veterans are unaware of short of a NOD. A true, stand alone administrative review is one that comes to mind. If you are convinced, and statute and regulation bear you out, you may file a request for Admin. review under 38 CFR §20.400 requesting a reading on the statute or regulation in question. This often can be done in far less than 12 months and frequently corrects a rater's brain fart. It is done at the VACO in DC, and, as such, actually is also a de novo review in its own right. I did it on my VR&E Independent Living Program request for a computer in 2011. I cited to OGC Precedent 34-97 that described my very same circumstances. It took three months from beginning to end. The VA filed it for me with my cite to the precedent and they promptly bitchslapped the VR&E gomer. I got my computer a month or two later. 

Pete, I deeply respect your expertise in this field but I am a pragmatist. If I thought a MFR was the ticket, I'd be pounding the typewriter into the night and advising the rest of you to do so. Failing that, I suggest you saddle up the horse and ride over to the RO. Park yourself in the waiting room with the largest bag of Fritos manufactured and ask to speak to the rater who screwed it up. Tell them you're disabled and have all day. No rush. 

Someday, VA may get their house in order. Until then, we'll continue to try to locate shortcuts and advise Vets of them. Pretty crazy, huh? 

Edited January 18, 2016 by asknod

[allan1351]

Great Post and Advice.....Allan

[Navy4life]

AskNOD;

Thank you for taking the time to provide this wealth of information.  I have an NOD I filed in November 2014 and I have sat dormant ever since.  I just recently sent an IRIS request and emailed the VA with the help of BroncoVet pointing me in the right direction.

My question, is if my NOD is successful and they reverse the decision of the original denial does my award date go back to 2013 when I originally filed?

Thank You

[FormerMember]

The absolute rule in VAland on claims is simple. Your date of claim will always be the day you mailed it in. 2013 would be the date of claim and thus the effective date. In the case of a request for an increase in your rating, if the medical evidence shows entitlement to an earlier date, the earliest that can be awarded is one year prior to your filing for the increase. 

As for us old Vietnam pukes with Agent Orange diseases, if we had been smart and filed for Diabetes 2 in 1994-regardless of what we thought caused it, we would get that earlier date. When Congress passed the law, they allowed for an earlier date based on the filing-even if the liberalizing regulation was not changed to encompass DM2 until 2001 as they did in that case. The same applies for Parkinson's being included in 2010. I have a birdshit Vet ( 101 Airborne) who filed for it in 98. Guess what? A short ton of retro will be coming his way soon.