07/08/2023
The Myth of “Requests for Reconsideration” in VA Benefits Claims
Veterans routinely ask our Veterans Disability Benefits staff, “Why is the attorney filing a Notice of Disagreement for my claim? I was told by my previous representative to file a request for reconsideration and that it would produce results much faster.”
My initial response to that inquiry almost always includes the phrase, “You should know there is legally no such thing.”
The Recommended Approach – File an Appeal
When veterans receive an initial denial as part of a new or reopened claim, the Department of Veterans Affairs, by law, must provide them with notice of their rights to appeal that determination. One of the most important notices provided is the deadline for initiating an appeal by filing a Notice of Disagreement within one year from the date of the decision Notification Letter. Doing so ensures the VA will re-examine that decision, even absent any additional evidence or statement from the veteran.
An Additional Option to Be Used in Combination with an Appeal – New and Material Evidence
There is also a lesser known method, which is inferior in some important aspects, for forcing the VA to “reconsider” any decision. However, it is not limited to just initial denials, and it is this method that I suspect is the source of confusion about the “reconsideration request” described above. However, the method I refer to here already has a description with which veterans and accredited advocates are familiar, so it is unclear to me why it should be referenced as anything other than what it is – submitting new and material evidence, and doing so within a year of a decision.
To explain further, recognize that the submission of new and material evidence within one year of a decision will trigger a re-examination of the decision with no additional filing needed. If a veteran submits new and material evidence along with a “request for reconsideration,” it is the new and material evidence alone that matters. The request adds no additional authority (though it may arguably provide better context).
If a veteran submits new and material evidence alone, with no request, the pre-requisite for forcing the VA to review that evidence and consider changing their decision has still been met. However, if the veteran submits a “request for reconsideration” alone, with no accompanying new and material evidence, the VA will send the veteran a letter stating that no action will be taken without either filing an appeal or submitting new and material evidence.
Don’t Let the Time Period for an Appeal Lapse While Waiting for a “Reconsideration”
Submitting new and material evidence within one year of a decision is not an initiation of or a substitution for an appeal. Attorneys accredited to represent veterans with VA claims are well accustomed to developing a strategy that works best for the facts and circumstances presented, routinely submitting new and material evidence in combination with the filing of an appeal in order to ensure that benefits are maximized when granted.
Why Doesn’t the VA Tell Veterans About This Option? Actually, They Almost Always Do
The Notification Letter (which begins “We made a decision regarding your entitlement to VA benefits.”) routinely speaks only of the one year deadline for filing a Notice of Disagreement and includes no mention of the option of providing new and material evidence. To find such language, one must look to VA Form 4107, titled “Your Rights to Appeal Our Decision,” which should always be attached to the letter.
The VA Claims Process is Full of “Magic Language” – Don’t Confuse with Pre-existing Terms
As a final note, use of the phrase “request for reconsideration” as used in the initial inquiry is even more puzzling when one considers that there is already a mechanism by that name in the VA claims process. The circumstances in which it would arise are specific as prescribed by law, meaning that any statutory or regulatory reference to “reconsideration” in the context of VA claims, refers only to a request made to the Chairman of the Board for Veterans Appeals after a Board decision has issued.
