What is a Request for VA Reconsideration and How Does it Work?
Request for VA Reconsideration: Legacy Appeals System vs. Appeals Modernization Act
Legacy Appeals System
A request for reconsideration in the legacy appeals system (i.e. the old appeals system) occurs when a claimant asks VA to reconsider an unfavorable decision because they feel that (1) an error of fact has been made that has affected the outcome of the case; or (2) there is some aspect of the case that VA did not adequately address the first time around. Requests for reconsideration are only officially sanctioned at the Board of Veterans’ Appeals and Court of Appeals for Veterans Claims (CAVC) levels of jurisdiction. There is no legal request for reconsideration at the Regional Office level. Veterans can still submit a request at the Regional Office, but VA has no real obligation to respond. Importantly, a request for reconsideration only applies to decisions that have not yet become final, meaning the one-year appeal period is still open. If the appeal period has closed, then it would be considered a request to reopen.
Appeals Modernization Act
In February 2019, VA enacted the Appeals Modernization Act (AMA), which now serves as the new appeals system. Similar to the legacy appeals system, there is no legal request for reconsideration at the Regional Office level under AMA; however, veterans do have the option to request higher-level review. This review option is similar to a request for reconsideration insofar as veterans are requesting that the Regional Office issue another decision based on the same evidence of record on which the prior decision was made. The higher-level reviewer has the ability to issue a new decision, or send it back to the prior decision-maker to correct any errors they find.
Requests for reconsideration are still sanctioned at the Board of Veterans’ Appeals and CAVC levels under AMA (see more below). However, if a veteran’s request for reconsideration is allowed at the Board, a hearing on reconsideration will only be granted if the veteran had requested a Board hearing on their Notice of Disagreement.
Claims Process Leading Up to a Request for Reconsideration
Before veterans can file a request for reconsideration, they must file a claim for benefits. From there, VA will issue a Rating Decision accompanied by a Notice of Action letter. Generally speaking, you have one year from the date of the Notice of Action letter to file an appeal if you do not agree with VA’s decision. If you appeal to the Board, you will then receive another decision. If the decision is once again unfavorable, you have either 120 days to appeal to the CAVC, or one year to file a supplemental claim. However, at this point you may also file a request for reconsideration of the Board’s decision. Again, the purpose of this is to have the Board re-evaluate its previous decision.
How Does the Board Handle Requests for Reconsideration?
When the Board receives a request for reconsideration, the Chairman of the Board first decides whether the request should be granted. If the request is denied, then you must turn to filing a regular appeal if you are still within the timeframe to do so. It is important to note that you cannot appeal a denial of a request for reconsideration to the CAVC.
If the request for reconsideration is granted, then your appeal is assigned to a panel of Board judges, also known as Veterans Law Judges. The claimant is given 60 days to submit additional argument and evidence before it goes to the panel. The judge that initially issued the Board decision denying benefits cannot be on the panel.
When is Filing a Request for VA Reconsideration Beneficial?
Filing a request for VA reconsideration may be beneficial when (1) the veteran believes that a really obvious error was made by the Board; and (2) the claimant believes that pointing this error out to the Board will produce a new decision or different outcome in their case. For example, the Board denied service connection for your back condition on the basis that there was no in-service notation of pain for that condition. However, you have service treatment records that show you received medical attention for your back. Here, it may be helpful to file a request for reconsideration and submit the service treatment records to VA. As mentioned above, the Board will decide whether the request should be granted or not. While it is very rare for these requests to be granted, it is possible.
Problems with Requests for Reconsideration
The major issue surrounding requests for reconsideration involves the fact that “requests for reconsideration” does not appear in any VA law or regulation. In other words, it is not an official path for an appeal. Therefore, there are no procedural guidelines and you cannot appeal if your request for reconsideration is denied. During the request for VA reconsideration process, you can end up losing your effective date by missing the window to actually file an appeal.
VA is likely going to take five to six months to adjudicate the request for reconsideration. Again, most requests are denied and then you are forced to appeal the decision anyway. Even if the request is granted, it is still not a guarantee that VA is going to grant the benefit. Instead, VA could just provide an extra paragraph of explanation regarding why a denial is still warranted.
Call CCK Today for a Free Case Evaluation: 800-544-9144
Deciding whether to file a request for reconsideration or an appeal can be very complicated and case-specific. CCK has the resources and the experience to guide you in the right direction. For a free case evaluation, call 800-544-9144.
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