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]

This is a great discussion on reconsideration.  For completeness, I will post, below, the entire section on Reconsideration, noting this is from the M21 and NOT the USC or CFR.  

Section F.  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 
effective dates for requests for reconsideration of  increased evaluation 
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    July 15, 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 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.

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 claim 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.
a statement indicating a  willingness to report for examination(s) after failing to report to a previously scheduled exam(s)    reorder the missed examination(s).
no evidence, or
evidence VA has already considered    send the claimant the letter shown in M21-1, Part III, Subpart ii, 2.F.1.e.

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 request 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 claim label based on whether the claimed conditions constitute new, increase, or reopened claims.

Example 1: Veteran receives a decision notice on April 4, 2015, stating that his/her claim for service connection (SC) 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 his/her claim for SC 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 SC for a back condition on the VA Form 21-526EZ.

In this example, an EP 020 with the New/Reopened claim label would be established, in order to ensure 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.  Effective Dates for Requests for Reconsideration of Increased Evaluation     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.  

Exception:  If the facts establish that a Veteran’s disability increased within one year prior to VA’s receipt of the original claim for increased rating, the effective date of the increase is the date on which the increase in disability occurred.

References:  For more information on
effective dates for increased rating claims, see 
38 CFR 3.400(o), and 
VAOPGCPREC 12-98, and
new and material evidence, see 
38 CFR 3.156, and
M2-1 Part III, Subpart iv, 2.B.2.

d.  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 request 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.

e.  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 the claimant 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 decision 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:

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.
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.
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.

Note:  If a rating EP was erroneously established to control the request, change the EP  to EP 400 with the Correspondence claim label and clear the 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.

Important:  If the rating EP was established with a claim label other than Reconsideration, review to determine if a pending  ITF was marked Claim Received.  In cases where an ITF status was changed based on the erroneous establishment of a rating EP, the claim processor must submit a trouble ticket to the National Service Desk to set the ITF back to the correct status.

Reference:  For more information about changing an incorrect ITF status, see M21-1 Part III, Subpart ii, 2.C.1.l.
 

[pwrslm]

I don't know if this existed a year ago, but it is a route that the VARO have to resolve problems with claims.

[ReallyAngry]

Hey, I found this online. Is it valid? http://www.benefits.va.gov/warms/docs/Regs/38CFR/BookI/Part17/s17_133.doc

According to this, a submitted request for reconsideration shall constitute a notice of disagreement for purposes of filing a timely NOD. Thoughts?

[broncovet]

The regulation cited by "really angry" specifically states this applies to VHA only, and not to VBA.  So, dont count on filing a motion for reconsideration to a VA benefits decision and expect it to be a NOD.  This reminds me of an old friend who said he backs up (you could not see behind you in that pickup truck)  "until he hears something expensive".   In a similar way filing a reconsideration without filing the nod within  a year "may be expensive".  For me, I can not afford to take this unnecessary risk.  

§17.133 Procedures.

 

(a) Scope. This section sets forth reconsideration procedures regarding claims for benefits administered by the Veterans Health Administration (VHA). These procedures apply to claims for VHA benefits regarding decisions that are appealable to the Board of Veterans’ Appeals (e.g., reimbursement for non-VA care not authorized in advance, reimbursement for beneficiary travel expenses, reimbursement for home improvements or structural alterations, etc.).

Edited January 26, 2016 by broncovet

[Navy4life]

I filed my NOD within days of receiving my BBE with the denial contentions.  I specifically requested a DRO hearing.  I am now scheduled for that hearing next month.  I would rather have a DRO hearing b/c reading up on the differences between a DRO hearing and a Hearing Officer are like water/oil

http://www.disabilitysecrets.com/resources/disability/veterans-disability/dealing-a-dro-veterans-disability

Read the above and see what I am talking about.  The DRO will review the entire file like it was the FIRST time being reviewed.  To me I like that option...

Thoughts?????

[ReallyAngry]

My bad. I didn't read carefully enough, and I didn't realize the bit about the VHA vs. VBA. Funny how that works, isn't it? Only one reason that i can see for it not counting with both sides. As for the DRO hearing, I'm not sure how I feel. My DRO review didn't change anything, so I'm not sure how the hearing will be any better. The guy who did mine just repeated the same mistakes that the guy before him made. Perhaps if I could afford a decent attorney... As it is, when you're not talking about a serious retro-payment possibility, it's all out-of-pocket. From the day I got my TDIU, attorneys haven't been very responsive as it's all just locking in benefits from there on. Frankly, I don't trust anyone at the VARO to make the right decision in my state since they have made their position abundantly clear on every claim and appeal I've filed--deny until I die or the BVA forces them to fix it.

I went to a BVA hearing 2 weeks ago, and the only contact I've had from my VSO in the last 8 years was him staring at me across his desk that morning. What a waste. I must be doing something right because I'm TDIU and 90%, without any support from a VSO--but that rating is going to change after this reconsideration/appeal. VARO decided on my claim 2 days before I went to the exam they scheduled, and the exam shows they screwed up big time. They gave me 10% for each leg on radiculopathy, and the examiner's findings support 40% on each leg. Guess we know why they didn't wait for the results, eh? Sent me to a third party contractor, too, in the hopes that I'd never get a copy of my C-file this quickly because a FOIA request is the only way to get to see those records short of going to the VARO in person. Luckily, I just so happened to have requested my c-file about 3 years ago, only to have it arrive one week before my BVA hearing. Ladies and gents, always get a current copy of your C-file because I found a denied claim in mine that the VA never sent me. Luckily it was only from November. 

 Anyway, reconsideration, I'm filing one, but I've got a year to get my NOD turned in if they don't get to it before then.So, if anyone's curious, I'll let you all know how the reconsideration goes.