The VA denied my claim, should I appeal or request “reconsideration”?

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The average processing time of Veteran appeals during 2013 – 562 days. The current inventory of pending Veteran appeals – 256,061 and growing every single day. The statutory time limit to submit an official Notice of Disagreement after receiving rating decision notifications – only 365 days. Veterans have painstakingly navigated the daunting and cumbersome claims process for generations. Unfortunately, deciding how to respond properly to unfavorable decisions has been and remains very confusing for many Veterans – especially when the concept of requesting “reconsideration” is commonly misconstrued and improperly applied.

Requesting “reconsideration” is a term used within the legal profession and found in numerous areas of law including civil litigation, government contract negotiations and administration of various Federal benefits including Social Security and Veteran disability compensation. However, in the context of Veteran benefits requesting “reconsideration“ exists officially at only the Board of Veterans Appeals (BVA) level and is actually very limited in scope. To properly request “reconsideration, filing an official “motion” is required although restricted only to matters regarding whether “clear and unmistakable error” has occurred and involves specific filing criteria.

At some point, Veterans – including some Veteran Advocates – began to request “reconsideration” of denied claims at the Regional Office (RO) level as opposed to submitting an official Notice of Disagreement – which is exceptionally hazardous for Veterans because no law or regulation specifically governs this process at the RO level. In fact, VA does not even publish statistics regarding these requests at the RO level. This lack of clarity means each individual RO frequently interprets and responds to these requests untimely, inconsistently and inaccurately – such as processing the request as intent to reopen the denied claim. The ambiguity also leaves little to virtually no accountability and thus may lead to disastrous results for Veterans – specifically loss of appellate rights and entitlement to an earlier effective date. In this scenario, requests for “reconsideration” have rarely been accepted as an official Notice of Disagreement under only liberal circumstances depending primarily on the precise verbiage of the document.

Important, Veterans who request “reconsideration” at the RO level do not receive additional time past the 365-day limit to submit an official Notice of Disagreement. In other words, eleven months spent waiting for “reconsideration” leaves only one month to submit an official Notice of Disagreement and anyone experienced dealing with VA knows one month is hardly much time. Further, the likelihood of receiving favorable responses from “reconsideration” at the RO level is miniscule considering the same VA employee will likely review your claim again.

The desire to receive “reconsideration” faster than awaiting the appeal process to unfold is understandable considering the disheartening time involved before appeals are completed. However, it is vital to remember and consider no governing statute or substantive data outlines what to expect when requesting “reconsideration” at the RO level. When deciding whether to request “reconsideration” or submit an official Notice of Disagreement, be sure to weigh known risks and benefits carefully before taking any action you may later regret.

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