Reconsideration after SSOC

[jlrith]

I would like to know if it's possible to request a reconsideration of a claim following an SSOC.

My claim just had an SSOC issued, and while I haven't received it yet, since it's an SSOC they denied my claim.

Here's the background:. While in the military I sustained a cold injury.  Years later, still in the military, I was diagnosed with Raynaud's (which can be caused by a cold injury.). The VA is not service connecting my disability as a cold injury because did not get medical attention for the original injury.  

That's my primary fight with the VA, but there is a second evaluation method that the VA had been completely ignoring.  In 2012 I started getting chilblains, which are a type of cold injury (prior to 1998 the VA regulations even specified them by name as a type of cold injury.). The VA service connected me with "Raynaud's syndrome with chilblains syndrome" and continued my Raynaud's rating because 'the symptoms of chilblains syndrome are so similar to Raynaud's that a separate rating would be pyramiding.'

But, if you evaluate my chilblains directly (being a cold injury) or by analogy (since they aren't in the disability schedule) you come up with a rating much higher than under Raynaud's.  And, VA has a well-established duty to maximize a claimant's benefits.  Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993).  Here, this duty requires use of the Diagnostic Code that is most favorable to the Veteran.  The applicable Diagnostic Code that results in the highest evaluation must be used, in other words.

But, alas, the VA has completely ignored this, even though I have pointed it out each time.

So, my question is, prior to going to the BVA, can I request a reconsideration to directly address the matter of properly rating my chilblains?

Edited February 18, 2018 by jlrith

[Berta]

Can you scan and attach the SSOC here?  Cover C file, name etc prior to scanning it.

We need to see their medical rationale as to how they rated the claim. 

Here are the Raynald's ratings:

"The Veteran's Raynaud's syndrome is rated under Diagnostic Code 7117 for Raynaud's syndrome. Under that regulation, Raynaud's syndrome with two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks warrants a 100 percent rating. Raynaud's with two or more digital ulcers and history of characteristic attacks warrants a 60 percent rating. Raynaud's with characteristic attacks occurring at least daily warrants a 40 percent rating. Raynaud's with characteristic attacks occurring four to six times a week warrants a 20 percent rating. Raynaud's with characteristic attacks occurring one to three times a week warrants a 10 percent disability rating. 38 C.F.R. § 4.104. The regulation includes a note stating that, for purposes of this section, characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved. 38 C.F.R. § 4.104."

https://www.va.gov/vetapp16/files2/1611942.txt

But this BVA decision has a DC for chilblain's syndrome.

The criteria for an evaluation in excess of 10 percent for chronic left foot pain, status post Chilblain's Syndrome, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7122 (2013).

https://www.va.gov/vetapp14/files2/1419237.txt

But  this BVA decision states:

"4. From April 16, 2002, the maximum schedular rating of 30 percent for residuals of cold injury of each foot is assigned under new Diagnostic Code (DC) 7122, and combined, it is more valuable than a 50 percent rating under old DC 7122."

https://www.va.gov/vetapp06/files3/0616890.txt

It seems confusing as to why they used the same Raynald's DC code to include the chilblains, as I think they might have overlooked DC 7122.

DC 7122 rating info is in the above link. It was in used  for chilblains in 2016 as the first BVA link shows.

 

Edited February 18, 2018 by Berta

[jlrith]

Thank you for the response Berta.

That my chilblains were not rated under DC 7122 is at the center of my question.  The VA has decided to completely ignore rating my chilblains under DC 7122, even though I have raised the issue multiple times.

My question still stands though:  Am I able to request a reconsideration addressing the mis-evaluation of chilblains?  I'd hate to waste the BVA's time when this one is straight forward. 

[Gastone]

What's the Denial Date of the Claim associated with this SSOC? How much time is left of the 12 mos RO appeal period? Upon receipt of the Actual DRO Denial Decision & SSOC, you'll either have the remainder of the (12 Month) Appeal Period or 2 months to file the I9 requesting a BVA Hearing. Do Not Miss your Filing Deadlines.

Is this SSOC the result of an RO or DRO Review requested when you file the NOD of the Denial in question? What prompted the "REVIEW" route? Was this a DIY NOD or did you use a VSO?

 

 

 

 

 

 

[jlrith]

8 minutes ago, Gastone said:

What's the Denial Date of the Claim associated with this SSOC? How much time is left of the 12 mos RO appeal period? Upon receipt of the Actual DRO Denial Decision & SSOC, you'll either have the remainder of the (12 Month) Appeal Period or 2 months to file the I9 requesting a BVA Hearing. Do Not Miss your Filing Deadlines.

Is this SSOC the result of an RO or DRO Review requested when you file the NOD of the Denial in question? What prompted the "REVIEW" route? Was this a DIY NOD or did you use a VSO?

 

 

 

 

 

 

Hello Gastone,

The SSOC date is 16 February 2018.  I have not received the SSOC itself yet, however I know that the evaluation of chilblains as a cold injury was not done since I am receiving an SSOC (denial) and a proper evaluation of my disability would put me up to 100%. 

The original date of claim was February 2012, decision issued September 2013, SOC (DRO) issued September 2014, I-9 filed October 2014.  I use the DAV.  

[Berta]

This Feb 2016 VA Blog indicates that you can submit evidence anytime prior to BVA transfer which the VARO will 'reconsider'.

That evidence should be anything the VA has not considered or incorrectly interpreted , and ask them why they did not use  DC 7122.

"You have 60 days from the date the SOC is mailed to you to file a VA Form 9, Appeal to the Board of Veterans’ Appeals, if you wish to continue your appeal to the Board.  Any time you submit more evidence after the SOC or before the Form 9, VBA must conduct another review of the case and issue another SOC – this one called a supplemental statement of the case (SSOC) that includes the additional evidence – or a rating decision, if the additional evidence allows VBA to grant the appeal.  This must be done each time you submit new evidence after the SOC. I have seen appeals with four or five SSOCs.  Keep in mind, each time you submit new evidence it triggers a new review. It’s like starting all over again in the appeals process.  Each new SSOC can add up to 400 days to the appeal, so my best advice is, submit all available evidence to support your appeal when you file your NOD."

https://www.blogs.va.gov/VAntage/25738/the-appeals-process-appeals-at-the-regional-office-level/

·"  If an SSOC is sent before the receipt of the substantive appeal, then the claimant has until the later of either 60 days from the mailing of the SSOC, or the remainder of the one year period from the date of the original notification to perfect the appeal with a VA Form 9 or substantive appeal."

·:  If an SSOC is sent after the receipt of the substantive appeal, then the claimant has 30 days from the mailing of the SSOC to respond before VA certifies the appeal to BVA."

https://www.benefits.va.gov/warms/docs/admin21/m21.../mr/.../m21-1mri_5_secd.doc

References:  For more information on

·  VA Form 9, see M21-1MR, Part I, 5.E.22

·  VACOLS, see the VACOLS User Guide, and

certifying substantive appeals, see M21-1MR, Part I, 5.F.26

Source M21-1MR 

Edited February 18, 2018 by Berta

[broncovet]

Generally, you probably dont want to do a "reconsideration", at least not without "new evidence".  Have you ordered your cfile so you KNOW what evidence the VA has?  If not, there is a good chance VA is missing key evidence.  

According to at least one attorney, you dont want to do a "reconsideration".  You file a Nod, resubmit new evidence under 38 cfr 3.156, etc.  

The reason is that its often confused with filing a NOD (which its not), and Vets miss the appeal deadline thinking they have "filed for reconsideration", when often VA just delays it until the appeal period is over.  Its what they do.  

Res judicata prevents you from getting someone else at VA to "reconsider" your claim using the same facts and arriving at a different conclusion.  

In other words, you cant just keep asking for a do-over until you find a generous judge to award.  Of course you can still appeal to a higher authority, up to the supreme court.  

Now, there is a "DRO" review/hearing, that is a "middle step" between VARO and BVA.  In other words, a DRO is a "higher" entitity than just a regular rating specialist.  

Submitting new evidence changes all this because, now you have a new fact circumstances (maybe) not known to the previous judge.