Reconsideration vs. DRO Review vs. BVA Appeal

[syne7]

Hello,

I have a claim that is getting ready to resolve where I requested an increase and it will not be granted.  Will not be lowered, but will not be raised.  10% for Asthma.  The ratings for Asthma state 30% for daily inhaler use.  I take Symbicort 2 times a day and also meet the criteria for 60% (3 exacerbation with prednisone from 1/2016 to 5/2016). 

When this result comes back, I would like to contest it.  I have three options as I understand it:

(1) Reconsideration.
(2) DRO Review (Denovo)
(3) BVA Appeal.

My 10% rating has been established since 5/11/1997.  I just recently engaged with the VHA (9/2015) and just learned about filling for an increase (stupid me I know) so I pushed the trigger on the increase on 5/5/2016.

I am leaning toward the DRO review becuase my understanding is that the DRO review can not be worse that the claim result.  Meaning the DRO can't reduce me, they can only increase or leave me the same.  As I am approaching the 20 year mark (protected rating).  It seems like it might be better wait until 6/2017 and file a NOD/DRO Review.

Can a reconsideration reduce the decision with out a CUE?

Any thoughts? 

Since the rating standard is PFT score or medication and clearly meet the medication for 30% and 60%, I am baffled as to how I did not get increased.  However I am sure there are many such stories which how these boards even exist.

Thanks in advance for your time and help.

[Berta]

How do you know there has been no increase? per Ebenefits???

In a different topic here you prepared a very good letter...supporting the increase.

But if you have not formally been denied for increase yet, I would wait for the actual VA letter to arrive.

The 9/2016 date isnt here yet---maybe a typo.

A reconsideration request ,with evidence, might be the best bet here...as I understand your other topic but this will not stop the one year NOD clock. If they failed to consider probative evidence ,that might warrant you formally asking them to CUE the denial...but they have not formally denied yet.....as I understand this... 

"Since the rating standard is PFT score or medication and clearly meet the medication for 30% and 60%, I am baffled as to how I did not get increased.  However I am sure there are many such stories which how these boards even exist."

You need to obtain, and we need to see, the actual  results of the C & P exam.

It is the C & P exam that denies most claims and the exam might not have even been done by a qualified medical doctor.

Or it could have been misinterpreted by the rater.

Sometimes they will act right away on a Recon request...but miost times the vet still will need to file a formal NOD in time.

I suggest that if a Recon request is prepared ,that you direct it Attention TO and then put the Alphanumeric code that will be in the upper right hand corner of the decision, after Re: and where your C file number is.

Those initials are the person who last handled your claim.
 

 

[syne7]

Hello Berta,

Thank you for the quick and informative reply.  I will post the letter when it comes.  However, my goal is to get a letter with the right answer :).

I know this is unorthodox, but I have had luck with such items.  The Asthma C&P was done by LHI so I can't see it yet.  However, I "believe" it was positive as I watched the C&P examiner enter in the info.  As it's an increase it was not for an opinion.

I will consider a reconsideration if I get denied the increase.  However, I want to figure out if the reconsideration can result in a lower rating (except for cases of fraud or CUE) ask it might be more advantageous to wait until 5/2017 and let me 10% rating go over 20 and be "protected".

 

[broncovet]

I agree with Berta.  Dont speculate on what a letter might say, but wait until you get the decision letter.  They have to have a reasons and bases, and, when you get it, if its wrong, then you can decide.   I know the wait is frustrating, beleive me, I am still waiting 14 years later.  

MOst likely, your best course of action if the decision is unfavorable to to file a NOD where your NOD specifically refutes the VA's reasons and bases, and cite evidence to the contrary.  

At this stage, you should be preparing your NOD by ordering your cfile, and getting your exams, seeing if you have the applicable nexus and current diagnosis.  

[syne7]

9 hours ago, syne7 said:

Can a reconsideration reduce the decision with out a CUE or fraud?

 

Can't seem to find or get an answer to this question.  Perhaps I am confusing things with too much detail.

[Buck52]

Here is some comments by Veteran Adjudicator ''Jim Strickland'' Maybe this will help ya.

 statesir-vadelegal.org/thoughts-reconsideration-rate

http://statesidelegal.org/thoughts-reconsideration-rater-va

 

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

 

Edited August 16, 2016 by Buck52

[Gastone]

S7, At Ease with the Negative Vibes. Way to Premature and you know, most things "Premature" are not good.

As to the "Official Rating Dept Request for Reconsideration," who knows, might work.

IF you do it right away, and attach your Med Evidence as pdf's, can't hurt and you might get a Decision Reversal. Just don't let the NOD clock EXPIRE.

I did an EED "Reconsideration," filed 04/16 after receiving Award letter 04/16. E-Ben recently indicated a Decision was expected by 07/31, nothing yet. NOD is Locked & Cocked.

Semper Fi