va rating decision appeal

This question pops up in my email inbox a lot.

It also frequently appears on a few social media groups and pages I frequent…and the answer to it is vital.

“The VA issued a Ratings Decision in my case. Before I appeal, I want to request reconsideration of the decision.  Should I do this? If so, how do I do it?”

The Answer is “NO!”

The quick answer is this: there is no such thing in the VA Claims Process known as “Reconsideration of a VA Ratings Decision”.

Every week, I talk to Veterans that “fall” for this trick recommended by a lot of VSOs and even some attorneys.   It’s hard to break the news: “Yes, you lost your right to appeal – and years or even decades of past-due benefits – because you let the VSO request reconsideration instead of appealing, or you withdrew your appeal to file a ‘reconsideration’.”

If you get a VA Ratings decision that you feel is in error – in any of what I call the “4 Pillars” of a VA Claim – you have only 2 options:

1) File a Notice of Disagreement (with or without a request for a Decision Review Officer, or DRO, review) expressing dissatisfaction with the decision and your intent to appeal it to the BVA.

2) Abandon your claim.

In 7 years of representing Veterans, I have never seen a situation where I would recommend that a Veteran “abandon” their claim.

(But I’ve had several OGC attorneys in CAVC Appeals snidely remark that I should withdraw a claim or issue….each time they’ve had to eat crow)

Why the confusion over reconsideration requests in the VA Rating Decision Appeal process?

The confusion is coming from a couple places, most likely, although I can only speculate.

There are a lot of bar-room VSOs and advocates out there.

You know the type.  The salty dog (sorry, Marines) down at the VFW, or at the pub down the street the bar that tells you how you should go for 100% TDIU, or that if you just say “such-and-such”, you’ll win ‘buku’ dollars in past-due benefits.

Most times, the “bar-room advocate” is about as effective as the “jailhouse lawyer”.

There are 2 times when you CAN request reconsideration. The first time is after an adverse BVA decision. The second is after an adverse CAVC decision by a single-judge on the CAVC.

The ALF does not consider requesting reconsideration of BVA decisions except in the rarest of rare situations.

In the one case we almost requested reconsideration, after conferring with the client we decided that it would just be faster and more effective to file a CAVC Appeal than to request reconsideration.  Metaphorically speaking, if you request a second opinion from the same doctor that gave you the first opinion, what do you think will change?

By contrast, requesting reconsideration after an adverse CAVC Single Judge Decision is just smart thinking.   I explain why in another post.

There are 2 types of advocates you can (generally)  trust in your VA Appeal.

VSOs, and accredited VA Attorneys.  

Some  say you can’t trust VSOs, but I think in the pre-decisional phases, a VSO can be very useful.

When it comes to appeals, though, you really ought to consider a VA Accredited Attorney: VSOs don’t have legal training, can’t spot all the legal issues, don’t always know the best way to fill out forms, etc.

Don’t trust attorneys?

Get a copy of my FREE eBook – “8 Things that Veterans should Know Before Hiring an Attorney in their VA Claim.”

(If you prefer a print copy, you’ll have to pay the company that prints and mails it, but you can do so by clicking here).

I recommend that you talk to no less than 3 attorneys, and use the interview questionnaire in the eBook to find out if you are dealing with the “real-deal” or a VA Claims Mill” or a Rookie that doesn’t know a C-File from a C-Clamp.

Bottom Line: You CANNOT request reconsideration of an adverse VA Regional Office Ratings Decision.

File the NOD, ask the DRO to do what is called a “de novo” review of the case, and if it doesn’t work out, continue perfecting your appeal to the BVA.

By the way – while you are waiting for the DRO Review to be scheduled, why don’t you get a copy of your C-File?

It’s the most important document in your VA Claim – if you don’t have it, then you are fighting the VA blind, with both hands tied behind your back.

4 Comments

  1. Robert Drolet

    There is such a thing as a VA Reconsideration of Ratings (VARR). Since the VA is doing ratings for Physical Evaluation Boards, service members in the IDES are entitled to ONE VARR which will only reconsider the ratings for conditions the military considers unfitting.

    Reply
    • Chris Attig

      Robert, thanks for that information. To make sure I understand, the VARR occurs during the PEB process (i.e., before the Veteran leaves active service with a disability rating?)

      Chris

      Reply
  2. Arthur Roberts

    I submitted a NOD with DRO request 2 years and 4 months ago to the Atlanta VA and my case has not moved at all since it was received on 29 Oct 2011. Any advice? congressman Kingston no help, letter to the Director Atlanta VA no response. My calls and inquiries no help……looking for a direction if you have one I could try.

    Reply
    • Chris Attig

      Atlanta is one of the “big offenders” when it comes to delays.

      I don’t give legal advice on a blog, but what I can tell you is this. There is a reason that the VA is taking so long. I recommend you take a read of my eBook “5 Reasons that the VA keeps screwing up your Claim”….then get your C-File to see if fixing any of those problems help. You can find the eBooks on the “Veterans U” Tab at the top of the page.

      Also, call them and ask to schedule a DRO Conference….or better yet, stop in the VA Regional Office next time you are in town. A conference is easier for the DRO – it’s a phone call. A hearing requires that they schedule an in-person hearing which requires a lot more work.

      Chris

      Reply

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