VeteransAdministration.12755109_stdFor 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 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- 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.

No Bozos

No Bozos

About asknod

VA claims blogger
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  1. Don Bichler says:

    I just go off the phone two hours ago with a VA 800# in Columbia, S.C. and he submitted a reconsideration for my supposed non-sc claim, one of 3 contentions that evidently wasn’t looked at. That one of three was denied last month as an FDC. I’ve heard of reconsiderations and also thought them sort of like the easter bunny. I asked if they were for real and he said yes. I’ve talked to him before, even though he naturally doesn’t remember, and he will always go above and beyond to find things out. I do trust this guy and he said if it doesn’t work out I can always file an appeal later. I don’t know what to think now but if it works or doesn’t, I will post what happened.

  2. asknod says:

    Consider this. A reconsideration is essentially a NOD in a different suit. In the event of a denial, you have lost valuable time because your NOD is now behind about 10,000 other Vets. To me, it is a wagon with three wheels and rarely goes anywhere unless you are homeless or knocking on Heaven’s door.

  3. Skywalker says:

    Haven’t had that much luck with the NOD and DRO review, either. Has anyone here had luck with that? They took another year (or so) with the NOD/DRO, and then they not only didn’t raise the disability, they proposed severing it (illegally). So the question is–what does anyone think either a “reconsideration” or a “NOD/DRO” is going to do? It stays in the same RO, with basically the same people. Why would we think we would get different results without elevating the claim to someone who might actually listen? (the BVA or CAVC)

    • Jack Stermer says:

      Sometimes we all have to face reality. After all, not all claims merit an award. However, one way to get an “evaluation” from a fresh set of eyes is to have a lawyer look at your situation. Typically, the evaluation is free & without obligation. Importantly, because attorneys who represent veterans on VA disability appeals only get paid if they win, it’s not likely an attorney is going to be interested if there’s no meat on the bone, so to speak……In any case, good luck.

  4. John King says:

    Vets have been told that if you file for reconsideration and provide some new evidence you can get positive decision much faster than if you file a NOD and ask for DRO Hearing or ask for BVA hearing on your denied or low balled claim. It is confusing because while you are asking for this mythical reconsideration at VARO level the NOD clock is running. There is also widespread VSO advice that it is better and faster to file a new claim rather than to file a NOD and then an appeal on a claim that has either been denied or lowballed. What they don’t really get is that they lose their EED and are faced with the same need for evidence they had with the appeal. I remember asking the VA to reconsider my denial of TDIU. It turned into a NOD and a DRO Review because I knew how badly I had been hurt many years before for not filing a NOD when I was low balled on my original claim. It took about a year to win the claim in appeals.

  5. Jack Stermer says:

    As a voice of experience, you are 100% correct. For what it’s worth, I filed a Request for Reconsideration and all it did was complicate and delay what I should’ve done in the first place – file an NOD. What’s worse – I chose to file a Reconsideration even though everything I read from bloggers & Vet sites, said not to. Why? My VSO – or rather, my former VSO.

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