Hello Jim,
I'm a VA employee and a rater at a VARO. You recently had a discussion about how "reconsideration" is used instead of going straight to a formal appeal. These are my comments about that.
I agree with you and the lawyer, there is no such thing as “reconsideration.” These are duplicate claims with no basis in law to reconsider unless evidence, not previously considered, is received. What should be happening in these cases (we routinely did it until around early-mid 2000, is that a letter should be sent to Veteran indicating that if he has additional evidence not previously considered, we will be glad to reconsider; otherwise, you have the remaining one year to appeal the decision. At this point, any pending claim would be cancelled.
It could also be liberally construed as a dissatisfaction with the decision and accepted as a Notice of Disagreement. In my opinion, this is the best option so the Veteran does not get more unnecessary letters and further delay of the inevitable denial possibly several more times.
38 CFR 3.160(d) describes a "finally adjudicated claim."
(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.
The VCAA that now exists covers not only what is required for service connection, but also any evaluation and effective date that is assigned.
In other words, there is only one VCAA letter required for the entire claim period even if BVA does not make a decision for years (as long as no new law change impacting it) because it is not yet finally adjudicated.
Instead of reverting back to that simple process, particularly in the absence of new evidence that has not been previously considered, VA opens a new claim, sends another VCAA letter, and then requests the exact duplicate evidence that they just requested months earlier. I have had up to five rating decisions (exact duplicate evidence in each case) come across my desk. Talk about an appellate administrative nightmare and a clear waste of human resources! They now have taken credit for working five cases when, in fact, they truly only worked one (and four duplicate claims). Now, they have a backlog that Veterans are being blamed for.
VA should be answering this question. How it is possible for them to reconsider a claim that is not yet finally adjudicated, in the absence of new evidence not previously considered (in other words a duplicate claim with no basis in law)? The training on finally adjudicated claims started going awry when they separated appeals out from the regular workload. As time went on from this point, there was (and still is) little to no appeals training and we now have a complete and utter mess that is so out of control that it is sickening. This is also why dependents are added so often with the wrong effective date. I can’t tell you how many senseless appeals we have on this issue.
The “finally adjudicated claim” was grounded in every employee when I started working there. You heard it, ad nauseam, until you knew what it was and what it meant.
VBMS will not solve any of these problems and the Veterans will continue to have long delays. The VA will continue to shift the sand piles (workload) from one area to another for the illusion of progress being made. With the completely disorganized way documents are being placed in this new system, the massive duplicate and triplicate evidence that is already contained in the claims file being scanned in, as well as many other problems that timely affect a rater, including the massive latency issues and having to open one page at a time and then having to change each one to a full screen or having to scroll the page, one cannot tell how much time will be added to process an appellate case.
Reply:
Your message is timely and correct. VA is offering an illusion and not much more. The people who are forcing this upon us are temps...political appointees who will be gone in a year or so. You will still be in the trenches, on the front lines and the problems will still be with you.
Thanks for all you do for veterans!