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Is There A Request For Reconsideration At the Local RO Level


pacmanx1

Question

This may not work and you may have to open it up in Word but it seems to point to the RO level and not BVA or higher. The bottom line of it all is if a veteran files a Request for Reconsideration at the RO level, if it is not completed that veteran better file a NOD before the one year time limit is upPlease comment.

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.

(HINT THE LOCAL VARO)

 

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:

 

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.

 

 

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.

 

Edited by pacmanx1
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I put in a request for reconsideration.  My initial claim was approved, but they lowballed my rating.

The RFR I submitted documented what I figured was a blatant error.  They had ignored facts contained in my VA medical records that was proof that a 10% rating was in error.

 

I documented everything, by date, the name of the MD, and the M21 instructions that said I should have a 40% rating for my left leg, including the CFR documenting the whole thing 100%.  I was given a 2nd C&P, which omitted everything, again.  It was almost the same as the 1st C&P, which was the cause of the whole thing to start with.

 

The Sr Rater who reviewed my case noted this.  He stated that both C&P exams were mistaken, and gave me the rating cited in M21 and the CFR.  

 

This saved me a lot of time from an appeal, it was all complete in about 120 days (4 months) from start to finish.

Edited by pwrslm
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The purpose of the OP (Original Post) is to show that most information about RFR is out dated and this change is dated July 15, 2015 and if a veteran files a quick RFR it is possible for them to win their benefits without appealing but don't wait six months after a rating decision and expect VA to complete the RFR.

Edited by pete992
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Great... we need this bumped up from time to time.

This applies to Reconsideration Requests at the RO level.

Requests of this nature over a BVA decision are explained here elsewhere and explained on the back of the I-9 as I recall.

A Reconsideration Request to the BVA should take the form of a Motion.

I posted the simple template for a BVA Motion here, somewhere,  available under a search.

 

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Yes, I understand that veterans can't trust VA and some from the old school still think that there is no RFR at the local VARO but I have won and help win several Request for Reconsiderations at the local RO. One VA messed up the effective date and we still had to file a timely NOD but that was done and waiting for the decision.

I thought this would get more comments.

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