For many moons I have read and reread other Veterans’ reports of requests for “reconsideration”. Much has been written on this subject over at our sister site Hadit.com and there is a large school of thought that it is a legal mechanism that exists to provoke a de novo review of a denied claim. In other words, simply sending in something that says “I request a reconsideration of your denial for my Hepatitis C dated September 7th, 2015.” Newsflash. There is no such animal.
Attached here is a BVA decision that addresses this dilemma. There has been one and only one path to Nirvana in this process and it has been published, described, talked about and lip-whipped to death. When you are denied, you have one alternative. You file a Notice of Disagreement (NOD) disputing the decision. You may submit new and material evidence to rebut the denial. If you are, or were, represented by a Veterans Service Organization, now is the time to study up on what you should have been told to submit when you first filed the claim-i.e the three basic ingredients you need to win.
In this decision, you see Johnny Vet is being repped by the American Red Cross. They are just about out of the VSO business but we see these every so often. The ARC suffers the same problem as all VSOs do inasmuch as they rarely tell you how to win. It would seem that they also told Johnboy to ask for a “reconsideration” as well. Since there is no such thing at the VARO, the raters laughed long and hard and promptly opened a new claim for him. This fails to explain why anyone would want to give up a favorable date of claim and begin anew with a newer one that screws them out of a lot of money. It also begs the question of why the rater didn’t call the Vet (or his representative) and query him as to his intentions rather than give him the worst alternative.
I have long preached that VA is not our friend in this nonadversarial process. Many of the actions they take on claims are counterproductive and harmful. Fortunately here, the BVA Veterans Law, Judge Jeffrey D. Parker, made the right call and converted the reconsideration into a true NOD to save the Vet his filing date.
In a June 2007 written statement, the Veteran asked the RO for “reconsideration” of the denial of service connection for a liver disorder. A notice of disagreement must be a written communication from a claimant or the representative expressing dissatisfaction with an adjudicative determination of a Regional Office. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording. 38 C.F.R. § 19.118 (2014). A notice of disagreement must be filed within one year from the date of mailing the notification of the initial review and determination, otherwise, that determination will become final. 38 C.F.R. § 19.129 (2014). While the RO treated the June 2007 letter from the Veteran as a new claim for service connection, the Board finds it to have been a timely notice of disagreement to the December 2006 rating decision. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute a notice of disagreement under the law), rev’d sub nom Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (an effective notice of disagreement need not contain any magic words or phrases). As such, the period on appeal runs from June 6, 2006 (the date VA received the original claim for service) to present.
Please do not listen to well-meaning Veterans who are not acquainted with the law. Please do not heed the advice of VSO representatives whose legal acumen came out of a Crackerjack® box. Fortunately for this fellow, VLJ righted the wrong. Far too often we see an entirely different outcome that takes another 8 years and a trip to the CAVC to correct the injustice.
I suspect the Vet has poorly described his symptoms in his own words. VA is fond of this technique to lowball your ratings. Had he been adequately represented by a lawyer, I’m sure he could have prevailed at a 20 to 40% rating but he chose what most do- VSOzoom.com. One will notice Johnny has nothing supportive from a doctor showing the degree of severity of symptoms. Everything is self-reported. Free representation is not always fruitful if you get the short end of the ratings stick.
For the record, a Motion for Reconsideration exists at the Board of Veterans Appeals only after you have been denied on appeal. There is a formal process for it that requires you to file for it within 120 days of your denial. There is no guarantee you will be granted one. It must be supported in law or evidence that rebuts the decision with substantial evidence that a legal mishap occurred. It cannot be a gripe that you feel the Judge is racist or biased towards women.
A similar mechanism exists at the Court of Appeals for Veterans Claims called a request for a panel decision following an affirmation of the BVA decision by a single judge in a memorandum decision. Again, to prevail and be granted a panel decision, you must present a novel appeal that asks for a precedental decision based on a situation that represents case law never before decided. It is referred to as a matter of first impression.