The VA is an expert at complicating things to the point that the average person has difficulty understanding the processes without the help of a VSO or, after a decision, an attorney. VSOs can assist during the filing of a claim, but it takes an attorney who is accredited in VA law to understand the intricacies of the VA legal system. Requests for Reconsideration are a perfect example of how the VA has created a legal system that is unique. See our Video Blog on Appeal v. Reconsideration.
What is a Request for Reconsideration?
First, lets’ describe and define a Request for Reconsideration. This is a request by a claimant for the VA to reconsider a decision that has not yet become final (before the one-year appeal period is over). If the appeal period has lapsed, then it would be a request to reopen, which is another topic. Officially, a Motion for Reconsideration is a motion that is made after a decision at the Board of Veterans Appeals or Court of Appeals for Veteran’s Claims levels of a case and is used when the claimant feels that an error of fact or last has been made that has affected the decision. This is the only officially sanctioned use of the Request for Reconsideration by the VA. There is no legal request for reconsideration at the RO level but somehow, someone decided that they would try it and it started being used by veterans and VSOs as a way to decrease appeal time. But it doesn’t work.
Why Does a Request for Reconsideration Not Work?
When a claim is denied or not given the rating that a veteran thinks it should have, the veteran has one (1) year to appeal the claim or the claim is finalized. The purpose of appealing has several reasons but the main one is to keep the effective date. The effective date of a claim is the date that the veteran files the claim for the issue. However, many things can change the effective date. Missing the appeal period is one of them. So, if a veteran files a claim on January 1, 2000, and the decision comes out on June 1, 2001, the veteran has until May 31, 2002, to file an appeal to that decision. If the veteran wins the appeal, even if it takes several appeals, the eventual claim will start at the original filing date of January 1, 2000. So, if that veteran doesn’t win the claim until January 1, 2010, there are 10 years of back pay the VA owes that vet. Right? Yes….unless the veteran filed a request for reconsideration.
The wait is long in the VA system, everyone knows that. Some advocates have informed veterans to file a request for reconsideration rather than an appeal to try to cut that wait time. Makes sense, ask the RO to reconsider that decision rather than filing an appeal, hoping maybe they will just grant it rather than having to take the time to process that much more paperwork. Wrong. Say that in the scenario above, the veteran filed the request for reconsideration after a decision on June 1, 2006. The veteran was tired of waiting and appealing, and just hoped that someone would grant the claim. He got another denial, appealed, and then finally won an approval in January 1, 2010. The veteran then received his back pay to June 1, 2006, not January 1, 2000. Why not? Two reasons….first, the veteran did not appeal the decision made in 2006 and the appeal period lapsed; second, the veteran filed a request for reconsideration which, since there was no appeal, was treated as a new claim, starting the process all over from the beginning.
When Can a Request for Reconsideration Work?
A request for reconsideration can work, theoretically, when new and material evidence is submitted with the request. However, that is based on the VA’s determination of what constitutes new and material evidence. What a veteran may think is new and material, something not presented before and relevant to the claim, may not be new and material to the VA. If the VA does not feel it add any different information to the claim than they already had, they will deem that it is not new and material. Unfortunately, the veteran may not find that out until after the appeal time has lapsed and the original effective date of their claim has been lost.
When in Doubt…
Regardless of how a veteran decides to handle the claims, getting legal advice is paramount in making sure it is successful when trying to navigate the VA’s tricky, self-created, unique legal system. There is a reason why even attorneys have to be certified in VA law. If it is that difficult for attorneys to grasp, why do we think so many veterans have such a hard time navigating the process?