VA Claims self help guide PART II

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VA Claims Self Help guide PART II;

Requesting a "Reconsideration" of a prior decision:
Another route that may be of some interest is the "reconsideration" route. This is where a claimant has received a rating decision and may disagree with that decision, but has "new" evidence that the Rating activity was unaware of at the time of their decision, and may think that the "new" evidence might result in a more favorable decision than the prior one. In this case the claimant has the one year appeals period to send in the "new" evidence and request that the Rating Activity "Reconsider" their previous decision. The claims folder would then go back to the Rating activity to be reconsidered and the RVSR would send out a new rating decision where the "new" evidence is considered and an new decision rendered. One thing to keep in mind is one MUST submit "new" evidence in order for the VA to "reconsider" their previous decision. Another reason one might consider the "reconsideration" approach is simply because a request for reconsideration generally goes faster then an appeal because the claims folder goes back to the RVSR and is worked according to the date of the request for re-consideration. If the request for reconsideration warrants a favorable decision, the effective date may be the date of the original claim, depending what the evidence submitted dictates . A request for reconsideration is simply "re-opening" a claim within the one year appeals period [(see 38 CFR, §3.400(q) for effective dates concerning reconsiderations) also see "Re-opening claims" for an explanation].

Another topic concerning "reconsideration" is whether or not one should file a Notice of Disagreement (NOD) if the VA hasn't yet rendered a decision before the one year appeals period has expired. If one sends in "new" evidence within the one year appeals period and request a "reconsideration" of VA's prior decision, they better be 100% certain it will change VA's prior decision; If VA accepts it as a "Reconsideration" (which as stated before is a "Re-opened" claim), they must follow the rules and regulations for a reopened claim and render a formal decision unless one withdraw the claim prior to a decision being made. If they do render a formal decision they must notify you of this decision which means that they cannot then turn around and accept the request to reopen as a Notice of Disagreement because it is dated and received prior to the latest decision on this issue. The NOD must be received AFTER you have been notified of the latest decision on that claim. Reopened claims and NOD's are not worked by the same people nor by the same administrative procedures. If one requests a "reconsideration" with the one year appeals period and then file a NOD before the one year elapses because VA hasn't made a decision on the "new" evidence, then one is asking that VA go through all the administrative procedures for a "reopened" claim up to and including a review by a Rating Specialist and then if the claim cannot be granted to just stop without a formal decision and send it back out to start reprocessing as an NOD. This would create an Administrative nightmare and simply cannot be done. If after requesting a "re-opening" of the claim you then file an NOD, the "re-opened" claim is no longer valid and whatever evidence you submitted with it will be considered as part of the NOD. As soon as the NOD is received on that particular issue, whatever it is, it MUST be worked under the appeal procedures. One cannot have both a reopened claim and an NOD on the same issue at the same time. In short, one must keep an eye on the expiration date for the appeal period so you could convert the "reopened" claim to a Notice of Disagreement (NOD) in the event a decision was not rendered before the appeal period expired. If you disagree with the decision and you aren't 100% certain that the new evidence will result in a grant, you cannot let that original appeal period run out. If the reopened claim is not granted and you don't submit an NOD within the appeal period for the first decision, you have lost the date of claim on that decision as a potential effective date. There are a limited number of situations where one should "re-open" the claim instead of filing an NOD, but these are few and far between and one must really, really know what they're doing when they make the decision to do this. The overwhelming majority of cases a Notice of Disagreement is the best path to take.

Can one ask for reconsideration of a claim without submitting new evidence, if one claims a clear and unmistakable error (CUE)?
Yes, but there has to be a clear and unmistakable error in the decision. If there isn't it does no good to claim that there is. The person looking at the claim of clear and unmistakable error can only change the prior decision by calling it CUE and this must be signed off on by the Service Center Manager. He/she can't change the decision simply by substituting his/her judgement for the original decision maker. So consideration of CUE is not really a "reconsideration". All they are doing is looking to see if there was an error in statement of fact or application of a law that resulted in an erroneous decision (see also "Clear and Unmistakable errors").

Re-opening claims:
Applying for an increased evaluation:
If you are already receiving service-connected compensation from VA for a/or disability(ies) a/or disease(s) and they have gotten worse since the last rating decision, you can request an increase in evaluation from VA. This is also known as a claim to Re-open. To do this you just need to write the VA a simply letter with your claims number on it (usually your SSN) stating that you believe your service-connected disability(ies) have gotten worse and you would like an increase in evaluation. Along with this letter you should attach any treatment records pertaining to your service-connected disability(ies) since your last C&P exam and rating decision. Once the VA receives your request for an increase, it will go to the Pre-Determination Team and go through the steps I previously mentioned in reference to an initial claim. In other words, you’ll receive that “Duty to Assist” letter again and all the things surrounding it. After your claim is “Ready to Rate,” it will go to the rating activity for a decision, just like a normal claim would. Once the RVSR has made a decision, the rating goes to the Post-Determination team to be promulgated as would an initial rating does. If you disagree with the RVSR’s decision, you can appeal that decision just as any other rating decision outlined in “Appealing an issue with VA.”

Previously denied claimed:
If you have previously been denied a claim for disability compensation and that decision has become final, meaning the one year appeals period has run out, you can request to have that claimed be Re-opened. In order to be able to re-open a previously denied claim, you must submit “New and Material” evidence. This means evidence which is “new," or was previously not before the decision maker, and “material,” which is evidence that bare directly on the fact as to why the previous claim was denied. Once you have submitted “new and material” evidence and VA re-opens your claim, they again have a “Duty to Assist,” and your claim will go to the pre-Determination Team for development, then to the Rating activity, and Post Determination Team, just as a claim for increase or an initial claim would. Keep in mind that by simply submitting "new and Material" evidence doesn't mean that your claim will actually be granted. It just means that there is enough prima facia evidence to warrant another look by the VA!

The Board of Veterans Appeals (BVA):
If you have received a decision from VA and sent the Notice of Disagreement to your Regional Office, and have either received a Statement of the Case or a Supplemental Statement of the Case from either a Decision Review Officer or the rating activity, you can further appeal the decision to the Board of Veterans Appeals by sending your Regional Office what is known as VA Form 9. By sending your regional office VA Form 9, you are what is called “perfecting” your appeal. Keep in mind that you only have 60 days from the date of the SOC or SSOC to submit this. Otherwise, the decision becomes final! Once the regional office receives your VA Form 9, they will certify your claim to be forwarded to the BVA and you will be put on the docket. During the time the C-file is being certified to be sent to the BVA, the claimant can submit addition evidence to support their claim. Once the C-file actually leaves the regional office of jurisdiction to the BVA, then the claimant has 90 days to submit any addition evidence.

Miscellaneous subjects concerning the VA

Clear and Unmistakable Errors (CUE):
The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.

Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurate portrayed the current overall limited range of motion.

CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim.
Reduction in benefits:

Reduction in current awards:
If you are already receiving disability compensation from VA for a disability or disabilities and the VA wants to reduce those awards, the VA will send you a “proposal to reduce” letter showing the proposed action (Proposed rating they want to assign and the effective date of the reduction). This is just a proposal and cannot be appealed. Once you receive a “proposal to reduce,” you have 60 days from the date of that proposal to submit any additional evidence to the Regional Office stating why you think your evaluation shouldn’t be reduced. After the 60 day period is up, a RVSR will make a decision whether to actually reduce the award(s) or maintain the current rating as is. Once the RVSR makes a decision, they will send you a rating decision detailing their decision. If the RVSR decides to reduce the award(s), then the veteran has the one year period to submit a Notice of Disagreement (NOD) to start the appeals process, which is outlined above.

If you want to make the VA hold off on reducing the monetary amount on the proposed date, you can file a request for a hearing. This must be done in writing within 30 days of receiving the “Proposal to Reduce.” Once you have submitted a request for a hearing (just a simple letter as there is no prescribed form) the VA cannot reduce the evaluation on the proposed date until the hearing is held, regardless of how long it takes to have that hearing.

Pyramiding:
Pyramiding is the prohibition of assigning more than one evaluation per bodily etiology based on the same symptoms. CFR 38, §4.14 states;

“The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.”

The VA compensates a veteran for symptoms of residuals from injuries or diseases suffered to a body part while on active duty, not the number of injuries or diagnosis to a particular body area. For example, if a veteran has a lower back disability, let’s say IVDS with a scoliosis. The scoliosis would not be rated separately because it is also within the lower back. It would be “lumped” together in the rating with IVDS. Having said that, the lower spine (Lumbar and Thoracic) and upper spine (Cervical) can be rated separately, because they are two separate moving parts of the spine. Another common one that veterans seem to misunderstand is with mental disabilities. A veteran can be only compensated for one mental disability at a time. For example, if a veteran has PTSD and Depression, the VA would determine which of the two warrants the higher rating and “lump” the lesser one with the other.

There is one joint in the body that can have more that one rating without pyramiding. That’s the knee. The knee can obtain two ratings, such as limited range of motion and lateral instability as long as the second one is compensable at the 10% rate or higher. For further reference see VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

*I would like to thank "Cruiser" for the information in "Clear and Unmistakable Errors," and "Request for Reconsiderations."

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