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Should I file a reconsideration?

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Fellow Vets,

I had previously been denied s/c for onychomycosis for a claim filed in April 2017 due to the rater stating that problem list items are can not be used for s/c.  They stated that I needed to provide documentation showing a clear diagnosis.  Problem with that was that I did not have my medical records.  I contacted the VA 3 times (1 through my Senator) and they sent me all of the files they had.  I received the same CD 3 times in a row (C-files)...so I asked them if my records were lost and they stated that they were not sure.  I contacted the AFPC and they told me to try my last duty station.  I contacted them and they actually had some of my records electronically.  I had them send the documents to me so that I could try to find a clear diagnosis.  Long story short, the doctor's appointment was indeed on the CD I received so I reopened the claim in May 2018, including that new information along with my current prescription for Lamisil (since it continues to be an issue).  Last week, that claim closed and I was denied for the following reason:  

"The claim for service connection for bilateral onychomycosis remains denied because the evidence submitted is not new and material."

Now how could that be when I submitted documentation that the VA had not previously had in their possession.  Now my question is, should I file an NOD or open a claim for reconsideration?  If the latter, how do I go about doing this?  Thank you in advance for any assistance you can provide.

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As most of the rest of us, you need to file a nod.  They should have given you a reasons and bases, as to which evidence was not "new and material".  

Fight on.  

Dont file a reconsideration, according to what I read by Chris Attig.  File a NOD.  

My suggestion is you refute the VA raters reasons and bases.  

For example, your Nod may be like something like this.  File it on the nod form.     "

Quote

 

While the VARO alleged the Veteran had not submitted new and material evidence, this conflicts with the facts.  According to the original rating decision dated (mm,dd,yy) the evidence recently submitted was not considered as it was not listed in the "evidence" section.  

    Further, the evidence submitted contains an exam dated, (mm, dd, yy), where the doctor diagnosed

"_ disorder" and prescribed Lamasil for the condition.  

    The Caluza elements have been met, as follows:

1.  Diagnosis date (mm,dd,yy) (name of doctor). 

2.  In service event and nexus are not at issue as the previous decision did not dispute a nexus or in service event.  


 

 

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20 minutes ago, broncovet said:

As most of the rest of us, you need to file a nod.  They should have given you a reasons and bases, as to which evidence was not "new and material".  

Fight on.  

Dont file a reconsideration, according to what I read by Chris Attig.  File a NOD.  

My suggestion is you refute the VA raters reasons and bases.  

For example, your Nod may be like something like this.  File it on the nod form.     "

 

Thank you for your quick reply.  I appreciate it.

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never ever ever ever ask for a reconsideration, it burns through your 1 year to appeal time frame, and it is literally not part of the legal process with the VA, i.e. they deny you on your consideration, and you've lost your right to file a NoD because you burned through your 1 year time frame waiting on that "reconsideration"

 

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How about this, File your NOD specifically requesting a DRO Hearing, 2.5 to 4-year wait for an RO Hearing Date. I know, you're saying to yourself "WTF is he nuts, I wanted the Award yesterday." You have to come to the realization that the chance of a Denied Decision Reversal pre-DRO Hearing are slim and none; unless your Denial is pulled for a "Quality Review" by a Sr RO Rater.

Immediately, as in same or next day after filing your NOD, file an Official request for an "Informal DRO Evidence Conference? Your POA-VSO can handle all the Filings, just be sure to get a copy of everything filed on your behalf. At your leisure, read up on the "DRO Informal Evidence Conference," in the M21 Manual.  At the very least, the "Evidence conference would supply you with exactly what evidence you need to prevail and/or possibly a DRO Award at the time of the Conference.        I used the "DRO Evidence Conference" back in 14, worked for me, all issues Awarded at time of Conference, which took place 6.5 months after Filing the "Conference" request.

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  • HadIt.com Elder

IF YOUR ORIGINAL CLAIM NOD TIME LIMIT RUN OUT IN April 2018 and you filed a reopen in MAY 2018

So as I understand your Original claim NOD run out  correct? and you filed a reopen a month later or so correct?and added this new evidence correct?

And they said 

''The claim for service connection for bilateral onychomycosis remains denied because the evidence submitted is not new and material.''

in May 2018, including that new information along with my current prescription for Lamisil (since it continues to be an issue).  Last week, that claim closed and I was denied for the following reason: 

"The claim for service connection for bilateral onychomycosis remains denied because the evidence submitted is not new and material.

''Now how could that be when I submitted documentation that the VA had not previously had in their possession.  Now my question is, should I file an NOD or open a claim for reconsideration?  If the latter, how do I go about doing this?  Thank you in advance for any assistance you can provide.''

Call your RO talk with a VSO and ask them is it legal for them to deny you in the reopen claim for evidence you just submitted (IF THIS WAS NEW AND MATERIAL EVIDENCE?

LET THE VSO KNOW WHAT THEY SAID  THE FACT THEY THEY NEVER INCLUDED THIS NEW AND MATERIAL EVIDENCE  THAT YOU SUBMITTED WITH YOUR REOPEN CLAIM.

What if the VA Denies My Claim Again?

If you succeed in getting your claim reopened but still do not receive benefits, you still have the right to appeal the denial of benefits. Read Nolo's article about how to file an appeal for veterans benefits.

 

 

 

'

Edited by Buck52
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I had to clarify this issue many times- one was with a  well known vet's lawyer who said there was no such thing as a Recon Request and the other was a Vet rep who really messed up some of the claims he was handling-because in those days the recon request still had to have a timely NOD-been there done that.He left our web site when he realised his advice to them was wrong.

 

In 2015 the VA changed the way these types of requests are handled. The M21-1MR change is here:

It was very difficult for me to find  this here- in any event-

It is all in the topic link above and I explained it here at hadit before.

 

 

 

Edited by Berta
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