What route should you take with your denied VA disability claim: NOD vs reconsideration or reopen? Make sure that you know the facts before you make a decision.
First, I want to say upfront that I advise filing an NOD 99% of the time. Let’s start out by talking about the advantages of an appeal instead of a reconsideration or reopen. When you file an NOD, you also want to elect to have a “de novo” review performed by a Decision Review Officer (DRO). A DRO is an experienced supervisor who will take a fresh look at the claim and set aside the previous decision that was made. The DRO has the ability to approve the claim based on the evidence that was already submitted if he/she found that a mistake was made in the previous decision, and new evidence can also be submitted with the NOD for the DRO to consider. If the decision is favorable and the claim is approved, the effective date will be the original date of claim and the veteran will be paid retroactively to that date.
Now, let’s talk about the advantages of requesting a reconsideration / reopen of a previously denied claim instead of filing an NOD. There is only one advantage, and it is at best just a slightly better possible outcome: timing. We all know how long it takes the VA to do anything and chances are that you had to wait a very long time to even get the first bad decision on your claim. When you talk to an ill-informed VA representative or Veteran Service Officer about filing an NOD, they will try their hardest to have you file a reconsideration / reopen the claim at a later date. They will say that it will take several years for your appeal to go through and that a reconsideration / reopen is much quicker, but that may not necessarily be accurate. About 80-85% of the NODs that I submit get approved by the DRO at the Regional Office level within about a year, which is the same timeframe as a reconsideration.
This leads us to the disadvantages of an NOD. If the DRO continues the denial after conducting a de novo review, then the claim goes to the Board of Veterans Appeals (BVA) in Washington DC, and it may in fact take several years for the decision. One other factor to consider when filing an NOD is that you only have one year from the date of the decision to file a Notice of Disagreement. So as long as you are within a year from a denial, you should go ahead with the NOD. Otherwise, your only other option would be to reopen the claim if the denial is more than a year old.
When we look at the disadvantages of filing a reconsideration / reopen, the facts tell the real story. Probably the most important issue is evidence. If you have a claim that was denied, then you must submit new and material evidence in order for the claim to be reconsidered or reopened. What if the you submitted all of the necessary evidence with the original claim and it was still denied? If you file an NOD, the DRO may find that a mistake was made and the evidence that was submitted was overlooked or improperly evaluated, and the claim could be approved. With a reconsideration or reopen, you don’t have this option and unless you have something new and material to offer, you will not be successful and the claim will remain denied.
I am working with a Veteran who was talked into withdrawing his NOD by a VSO and filing a reconsideration. As a result, it cost him over $46,000 in back pay!