Reconsider or NOD?

[spearhead91]

I have read quite a few post about NOD, appeal, BVA CACV etc. Just received denial on bunch of contentions. I'm reluctant to post denial letter fear of retaliation etc. Anyhow is a quick send of a Reconsideration request and about a 10 or a dozen pieces of extra documents that did not appear in the evidence list. Some were uploaded to eBenefits but not mailed in. So in reading the MR 

M21-1, Part III, Subpart ii, Chapter 2, Section F - Requests for Reconsideration

Article ID: 554400000032429

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000032429/M21-1-Part-III-Subpart-ii-Chapter-2-Section-F-Requests-for-Reconsideration?query=m21-1 part iii subpart ii chapter 2 section f requests for reconsideration

It sounds like all I have to do is a one page letter with name/ssn etc and add the new and material evidence that does not appear to have been used in the claim decision. I've read all the horror stories about the NOD clock etc but these items are IMO's, STD received, and a few other documents that do not appear on the evidence list. I won't be able to get the updated C-File in time. 

So it is worth the effort with the reconsideration? I ask because Ramp closely approaching. Note, I did not get a RAMP letter with the decision just the standard appeal form.

Also, discovered a CUE from prior decision can that be added into the current reconsideration? or does it need to be another request? Or will it be a admin nightmare?  (((Chuckles should file a new claim also. Valid though.)))

Thanks

Spearhead91

 

[vetquest]

Filing a NOD keeps your original claim date if you win.  Filing a new case gets the date the new case was filed.  You do not need to get your c-file updated.  File the NOD and attach the data that was not listed as evidence considered, they will most likely say they already have this evidence but it makes sure they consider it this time.  

 

[broncovet]

It sounds like you have done your homework, researching request for reconsideration.  I dont recommend it.  Hill and Pontoon agrees with me:  

 

Here is why:

1.  Did you read and understand the link you posted?  If you did, then you surely are a candidate for the Nobel Peace Prize for understanding VA benefits.  More importantly, however, how many VA employees read and understand this?  Many VA employees dont read at all, according to Berta and myself, as they cant seem to be able to read and understand a simple nexus.  Remember the VA unwritten rules:  The VA starts out with a delay tactic.  If they can not find one, they depend on you to create one.  Dont help them out by creating a possible glitch.  Avoid them like  the plague.   Reconsideration is spelled "G L I T C H".   Instead, file a much simpler NOD, and put it in appeals.  A least a few people in VA understand what a NOD is.  

2.  I can not see the benefit in a reconsideration.  What would a reconsideration accomplish that a NOD would not?  Most Vets think they "might" be faster.  Dont count on that one.  If the reconsideration is not resolved in one year, then your appeal period expires, unless, of course you also file a Nod, and then you really confuse VA.  

3.  If you want "fast resolution" then opt in to RAMP.  You can download the form, you dont have to have their invite.  Just make sure you are eligible, and check the rules on RAMP.

4.  There is a "trap" here.  The Veteran files a reconsideration, and VA does nothing but delay.  (Oh gee..that never happens).  Then you pass the one year appeal period, and you go into a full fledged glitch repair routine that lasts as long as VA wants it to last.  

5.  Res Judicata.  UNless you have new evidence, Res is not in your favor.  The courts dont allow you to keep shopping for a Veteran friendly judge who will award benefits.  Once its adjuticated, it takes a compelling reason for some "other" decision maker to change decision maker number 1's, decision.  

Edited August 22, 2018 by broncovet

[Berta]

You stated:

 ." I've read all the horror stories about the NOD clock etc but these items are IMO's, STD received, and a few other documents that do not appear on the evidence list. I won't be able to ge..."

. 

That is a violation of 38 CFR 4.6:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. "

In addition to the NOD you can file a CUE claim under auspices of 38 USC 5109 and point out their violation of 38 CFR 4.6.

"Also, discovered a CUE from prior decision can that be added into the current reconsideration? or does it need to be another request? Or will it be a admin nightmare?"

The VA erred in my veteran daughter's sole claim - under Chapter 35 years ago.She said I prepared NOD and added CUE to the letter. ( They fixed it in 3 weeks)

However I have had success with 38 CFR 4.6 CUEs many times and suggest that you keep themj as separate submissions.2 vets here also used this tactic and got a fast reversal, by cueing them in the appeal period.

My 1151 HBP CUE is here in the CUE forum.

They denied in March 2015, and then awarded due to the CUE in April 2015- no need for a NOD.

I only needed one piece of evidence-it came from VA Central Office-from VA's top cardio doctor at VA Central  and they ignored it completely -

We could help more if we can read the decision here.

Are you saying they never mentioned the IMOs in the narrative as well as the Evidence list?

In that case it might not be a CUE .

Cover your C file # and name prior  to scaning and attaching it here.

 

 

.

 

 

 

Edited August 22, 2018 by Berta

[Berta]

To clarify-

If the VA knocks down an IMO in the narrative of any claim-

that would not be a violation of 38CFR 4.6 because it shows that they considered it-

The VA never knocked down any IMO I ever had- because they failed to consider them at all-that was the CUE.

But if the IMO does not conform to the IMO criteria here at hadit- they will be able to swiftly deny the claim.

[spearhead91]

Broncovet  --- I agree on most of what you posted with the NOD and time running out while the claim is (sitting there) reconsidered and a month prior or they dont send anything at all and time runs out. So the NOD route makes more sense. 

Berta -- in the evidence section the IMO's are not listed at all. But in the narratives for the few that had a IMO it says ".....the majority of medical evidence is against a nexus link between the Veteran's..."  but does not mention the IMO etc or in the list the evidence section and the same verbage for a couple other narratives.

I think I have my head around the CUE and makes sense to keep that separate.  In that CUE  the info is in STR's,  more than a couple of times, to be considered chronic not sure if word there, and in Statement I submitted, a little gray on times seen since service though, but it looks like the wording on that CUE they said "...there is a record of treatment in service for XXXXX, but the evidence does not show a chronic disability during service nor after active duty. Therefore, service connection is denied." BUT, it makes is sound like I went for one treatment for one time for record of treatment, I went multiple times etc. 

You now what burns me up on all of this I have like 4 or 5 other events in service, granted only one time being seen but major enough to get seen. And you know why, I was always in CS (Combat Support) and go first divisions where you are always training, deployed or on the ready line to deploy...I have HUGE gaps in STR's for 6 months here and there at a time. You just didn't go because you were not somewhere to go. I'm not making that point more than what is but that some of us served in forward units all the time, not during combat etc, but no admin in the rear with the gear units, except for one year recovering from a surgery and after that I'm back on the train. Did not serve 20 but served more than 10 and had to leave because of health issue, no MMRB, think back to BRAC days people didn't matter much.

And thank you both for all you do on here to try and help.

Edited August 22, 2018 by spearhead91

[Berta]

" But in the narratives for the few that had a IMO it says ".....the majority of medical evidence is against a nexus link between the Veteran's..."  "

Probably the C & P doctor googled for negative medical crap on the internet.

A strong IMO from a real doctor (fully with expertise in the disability(ies) you have, can overcome that statement with a full medical rationale ,if one exists, to establish a nexus.

Much of my advice here is based on my personal experience.I had 3 IMOs the RO refused to consider.

My evidence was overwhelming even without them-and never had IMOs when I FTCAed them successfully, but I gladly went to the BVA, because the BVA can read.

I paid 4 thousand for the IMOs, and also got a freebee from a former VA neuro doctor, easily recovered in the retro I received.

But I know a few vets who obtained IMOs that could not establish a nexus- we need to be sure that,when we lay out cash for IMOs (and in some cases an IME instead,is needed,) that it will support our claim.

I have no idea what type of claim you have been denied for----and what nexus is needed

So we are in the dark as to whether an IMO/IME could even help.

I might be wrong about the C & P examiner googling for this statement- 

"the majority of medical evidence is against a nexus link between the Veteran's..." 

There is more to this then we know.