Sec. 7103. Reconsideration; Correction Of Obvious Errors

[allan]

From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 7, 2003]

[Document not affected by Public Laws enacted between

January 7, 2003 and December 19, 2003]

[CITE: 38USC7103]

TITLE 38--VETERANS' BENEFITS

PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 71--BOARD OF VETERANS' APPEALS

Sec. 7103. Reconsideration; correction of obvious errors

(a) The decision of the Board determining a matter under section

7102 of this title is final unless the Chairman orders reconsideration

of the decision in accordance with subsection (b). Such an order may be

made on the Chairman's initiative or upon motion of the claimant.

(b)(1) Upon the order of the Chairman for reconsideration of the

decision in a case, the case shall be referred--

(A) in the case of a matter originally heard by a single member

of the Board, to a panel of not less than three members of the

Board; or

(B) in the case of a matter originally heard by a panel of

members of the Board, to an enlarged panel of the Board.

(2) A panel referred to in paragraph (1) may not include the member,

or any member of the panel, that made the decision subject to

reconsideration.

(3) A panel reconsidering a case under this subsection shall render

its decision after reviewing the entire record before the Board. The

decision of the panel shall be made by a majority vote of the members of

the panel. The decision of the panel shall constitute the final decision

of the Board.

© The Board on its own motion may correct an obvious error in the

record, without regard to whether there has been a motion or order for

reconsideration.

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1241, Sec. 4003; Pub. L. 100-

687, div. A, title II, Sec. 202(a), Nov. 18, 1988, 102 Stat. 4110;

renumbered Sec. 7103, Pub. L. 102-40, title IV, Sec. 402(b)(1), May 7,

1991, 105 Stat. 238; Pub. L. 103-271, Sec. 6(a), July 1, 1994, 108 Stat.

741.)

Amendments

1994--Pub. L. 103-271 amended section generally. Prior to amendment,

text read as follows:

``(a) Decisions by a section of the Board shall be made by a

majority of the members of the section. The decision of the section is

final unless the Chairman orders reconsideration of the case.

``(b) If the Chairman orders reconsideration in a case, the case

shall upon reconsideration be heard by an expanded section of the Board.

When a case is heard by an expanded section of the Board after such a

motion for reconsideration, the decision of a majority of the members of

the expanded section shall constitute the final decision of the Board.

``© Notwithstanding subsections (a) and (b) of this section, the

Board on its own motion may correct an obvious error in the record.''

1991--Pub. L. 102-40 renumbered section 4003 of this title as this

section.

1988--Pub. L. 100-687, in amending section generally, added subsec.

(a), struck out former subsec. (a) which provided that determination of

section, when unanimous, be final determination of Board, added subsec.

(b), struck out former subsec. (b) which provided that when there is

disagreement among members of section, concurrence of Chairman with

majority of members of section shall constitute final determination of

Board, and added subsec. ©.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100-687 effective Jan. 1, 1989, see section

401(d) of Pub. L. 100-687, set out as an Effective Date note under

section 7251 of this title.

Section Referred to in Other Sections

This section is referred to in section 7107 of this title.

[tssnave]

Allan,

Do you know the location in the regulation for a reconsideration of a DRO decision based on new and material evidence?

The VA denied my first claim (ignored a letter from the treating active duty doc), DAV sent a NOD, and 3 years and one incomplete C&P exam later the local DRO rated me 50% this Feb. I am in the process of getting an IMO to try to get my rating up to 70% where my symptoms fall out as well as go for 100% IU based on this new and material evidence.

However, I have gotten conflicting information about whether I need to request:

1) a NOD (they gave a fair rating given the incomplete evidence in the C&P)

2) a request for reconsideration

3) a request for increase evaluation (it hasn't gotten worse since the C&P exam, my symptoms were simply not well documented in the C&P)

4) a request to reopen my claim.

The 4 terms seem to mean different things but I can't find the regulation that outlines the difference. Whatever route I need to take it will be based on the new and material evidence provided in the IMO.

My goal is to preserve my original claim date and I'd like the claim to stay at the local RO. Ideally, since the regular raters were so incompetent in the first place, I'd like the DRO to look at the new and material evidence. However, I have read in M21-1MR, Part I, Chap 5, Sec C, 13.b that "an appelllant cannot have more than on de novo review of his/her claim" so I'm concerned that whatever I do it will leave the RO and go to DC where it will sit forever.

What is the best way to preserve my original claim date and keep my file at the RO when I send in the new and material evidence? Any chance of another DRO since there is new and material evidence? My vet rep keeps getting me confused with other vets and has given me 2 different answers (which conflict with what I've understood from reading hadit) so I am confused which way I need to write my cover letter for the new and material imo and concerned that I will do it incorrectly if I can't get a straight answer with the supporting reg to back it up.

Thanks for all your posts, I have read most of them over the course of the night.

ts snave

[allan]

Hello ts snave,

you can go to this link: http://www.warms.vba.va.gov/TOCindex.htm

Type this in the search box:

(new evidence, reconsideration, DRO)

The sequence makes a difference sometimes.

http://www.warms.vba.va.gov/admin21/m21_1/...5/ch05_secc.doc

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secb.doc

Heres a couple I picked out of what came up.

Try it yourself. Theres a variety of results to pick from

Allan

[tssnave]

Allan,

Thanks for your reply.

Thanks also for some of the other posts you've been making lately with other links to important information.

I appreciate the help.

ts

[allan]

Your sure welcome TS.

I hope it helps.

.........Allan

[john999]

Tssnave

I had a De Novo Review of a claim for peripheral neuropathy and was denied. I then asked for a personal hearing and was granted a personal hearing with the DRO for the same claim and the same evidence as the De Novo Review. Did you get a hearing the first time round? If not you might ask for a personal hearing on the matter. The Veterans benefits manual says that you can have a second DRO Review/hearing on the same issue if the DRO denied part or all of the benefits requested. For instance if the DRO granted service connection but the vet disagreed with the percentage you could file another NOD and ask for a new DRO Hearing. This is on page 898 of the 2006 VBM.

[tssnave]

John,

Thanks for the information.

1. Does the Veterans benefits manual says that you can have a second DRO Review/hearing on the same issue if there is new and material evidence?

I did not have a personal hearing nor do I think it’s in my best interest. I am much better in writing than I am in person. I can work on something written over a couple of days (weeks, if necessary) to collect my thoughts and analyze and present information far more clearly in writing than I ever can in person, especially in a stressful situation where I’m away from home and in an important situation (hence, part of why I didn’t convey all the information I needed to during the C&P exam). I’ll spare the details but I do not function well in person. I don’t stay on track, can’t think on my feet, lose my concentration, don’t process and understand questions, etc. While a personal hearing might help the DRO see that I’m not BSing about my mental illness disability, it would be humiliating and I believe counterproductive to my end goal of getting information to them that they can rate on.

I have read (since I first started this thread) in the M21 that the DRO can review new and material evidence, which is what I’m hoping will play out in my case. I won’t be asking for a second de novo review since service connection has been granted so that shouldn’t come into play. I just hope they don’t give it to the regular raters who couldn’t get it right the first time. I will request that the DRO review the new and material evidence.

2. My concern, after reading your reply, “you can have a second DRO review/hearing on the same issue if the DRO denied part or all of the benefits requested” is that I am not exactly sure what benefit I requested because I never got a copy of the NOD the DAV submitted after my claim was initially denied for not being service connected (even though I had a letter from the psychiatrist who treated me while I was on active duty). Would that mean the only benefit I requested was service connection or does the DAV request service connection and the highest possible rating?

I am going to ask my DAV rep for a copy of the initial NOD. He’s been very rushed and stressed out the last several times I’ve talked with him and he gets me confused with other vets who have PTSD (not my issue) and the NOD predates his being my rep but I assume he should have it in the DAV files and can get me a copy.

As a side note, based on the recent thread about the VBM, I ordered it and The Advocate newsletter. They haven’t come in yet and I’m sure, like most things, it will take me a while to get used to finding information in it but I wanted to thank you for quoting it and giving me the page number. I debated whether or not to get it because it is such a huge expense but your post confirms my decision to go ahead and buy it.

Please let me know if:

1. The VBM says you can get another DRO review based on new and material evidence and if so, what page did you find that on.

2. If you think my initial NOD could have been limited to determining if my disability was service connected since that was the reason the VA denied my claim.

Thanks again for your help. It sounds likely that I should be able to have the DRO review the new and material evidence unless the NOD the DAV wrote was limited to only the issue of service connection.

Thanks,

ts