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.

[john999]

You should be able to get a new DRO if any of your claims were not granted all possible benefits. For instance, if you were granted service connection but you are dissatisfied with the percentage rating then you file an NOD and ask for a new DRO review. If you have new evidence to support a higher rating then all the better. If you were denied anything in your decision you can file a NOD and ask for an appeal including a DRO or appeal to the BVA in the future.

You really are entitled to the highest possible rating when you file a claim. If you don't get it then you can file a NOD. You usually want the NOD to be pretty broad and not limited to just one issue. You should also state you intend to appeal the denial of all possible benefits. Get a copy of the NOD and let us all get a look at it to advise you. When you ask for a DRO review yo can submit new evidence but the basis of the DRO is that you disagree with a decision.

[allan]

Hello TS,

I'll tell you what the DRO said when I asked him to read into the record, what a C&P's favorable opinion said.

He said I can submit any evidence I want, "but" it is the VA that, "chooses" what evidence is evidence of weight.

If they refuse to recognize favorable evidence at the VARO or DRO review, you may have to wait until your at the BVA or Court of Veterans appeals level, before you receive anything resembling, " due process of law".

They will sit on it, until cornered & forced to list it. More then likely the evidence(favorable Opinion) will be consistently misquoted throughout the SOC or SSOC.

It no longer surprises me to see such friendly & helpful people, lie, & twist facts ito something they call due process, in order to meet their quota of denied benefits for the month.

The main agenda of the Veterans Affairs, be it health care or benefits, is to provide the benefit with as little use of funding as can be possibly done, without being thrown in jail for it. Since that seldom happens, That leaves the door opine for just about anything.

Unless you are extremely lucky to get an honest evaluation of your evidence by a RO claims officer, DRO or whatever, that doesn't listen to the bean counters, then theres a chance you may be at this for some time.

Another thing to consider, is theres a war that needs paid for.

If the glass gets low from one source, than you squeeze it from another source you have more control over.

Those of us that suffer the most, will be the easiest for these vultures to pick on.

[tssnave]

John999,

Thanks for your continued help.

The DAV does training every Thurs/Fri afternoon so I’ll request my initial NOD tomorrow and maybe I’ll get lucky and he’ll fax it to me. Otherwise, I will pick up the thread when I get it.

Thanks,

ts

[tssnave]

Allan,

Please tell me you were joking about the VA having a quota for denying benefits. That's not true, is it?

I am shocked at what the DRO said to you when you asked him to enter evidence in your file – I thought whatever you sent in they had to read and evaluate. Can they just disregard the information you send them?

Do they keep the letters/memos/statement in support of claim/IMOs that you send in your claims file or do they toss them if the rater deems that some or all of what you send in is not weighty enough?

The only way for a fair review of the claim is if they keep, read and use for evaluation purposes everything you send them in the C-file no matter if it is a memo from you explaining something or some piece of evidence that they decide doesn’t have enough weight.

I thought I read somewhere in the M21 that even if they didn’t give evidence (and by that I am including a memo from the veteran) much weight they had to list it and address it in rating decision. I’ll try to find what it is I thought I read.

The problem with not sleeping for days on end is everything runs together and often I forget to highlight something important I’ve just read or I forget to print it or don’t fully understand what I’ve read in the first place. You need a sharp mind to play this game and I’m afraid I’m behind the 8 ball on that one – however, hadit levels the playing field significantly for someone like me which is why I appreciate all the help so much.

It just boggles the mind that they can pick and choose what they want to evaluate. However, it could explain how come they didn’t list the nexus that my PCP provided in the DRO Decision letter. I have always assumed that they didn’t list it because either:

A> they lumped it in under her “treatment notes” (it was written on the Standard VA Statement in Support of Claims form so they should have recognized it wasn’t her treatment notes)

B> they thought the C&P examiner’s nexus was stronger (she wrote that there is plenty of evidence in veteran’s C-file to connect in service treatment to current treatment, bless her heart) so they didn’t need the PCP nexus so they just didn’t list it.

Who knows? Either way, I’m glad that they ruled my claim was service connected. I just wish the C&P exam had gone better. However, it gives me an opportunity to work on my IU claim.

Luckily, I told the C&P examiner I was unemployable because of my disability and she made note in my exam of our conversation and it shows up in the DRO Decision letter so that should protect my effective date for an IU claim but first I have to get the rating up to 70%.

Just had my last IMO psychologist appointment today and he said call him in 3 weeks and he’ll try to have the report done. I gave him the C&P Mental Disorder worksheet and he’s agreed to write it in that format so the report should be suitable for rating purposes.

Surely the VA should weigh the opinion of a psychologist who has been a licensed clinical psychologist for over 20 years and saw me for 7 hours over a very young C&P psychologist who couldn’t have more than 5 – 7 years practicing psychology who saw me all of an hour. If not, then you’re right, I’m in for a long haul at the BVA.

Thanks again for all your help. I really appreciate it.

ts

Edited April 20, 2007 by tssnave

[allan]

Hello Ricky,

Qoata? No, I don't think they actually have a qoata. It just feels that way sometimes. Personally, I believe they try to get as many as they can denied, but a few always seem to slip through.