If you are a veteran that was denied benefits, read this article before you make the mistake of filing for reconsideration.
In 2018 there were 19.2 million veterans in the United States. Of those, 4.7 million suffer from disabilities. Approximately 41% of veterans in service after the 9/11 attacks suffer disabilities, compared to 25% of all veterans.
This difference is likely due to improvements in medical treatment on the battlefield and rapid evacuations to treatment centers, resulting in a higher survival rate following injury. So thankfully, more soldiers survive their injuries, but live the rest of their lives with the effects of the injury.
Applying for VA disability benefits is a long process. If you receive a denial or lower rating than you feel appropriate, you have the option of filing a Motion for Reconsideration or an appeal.
We are going to provide you with everything you need to know about filing a motion for reconsideration, and the reasons why it is not the best decision for your VA disability claim.
What We Cover in This Article about a Motion for Reconsideration
What is a Motion for Reconsideration?
A motion for reconsideration is a legal pleading that asks the judge to reconsider his/her decision on your case. The reason for requesting reconsideration must be due to new circumstances, facts, or the law. There must be legitimate reasons these were not brought to the court’s attention during the original hearing.
The courts and Veterans Administration each have their own rules for the filing of appeals and motions. You must adhere to those rules and deadlines to avoid the dismissal of your case.
Two Opportunities to File
Many veterans believe they have three (3) chances to file a motion for reconsideration, there are really only two (2).
Why a Notice of Disagreement is Better
When the VA denies your claim with a rating decision, you will receive a Notice of Action letter. The date of that letter is the date of the decision. You then have one (1) year from that date to file a Notice of Disagreement (NOD) if you do not agree with their determination.
The NOD is the first step in the appeal process. This appeal may take three (3) to eight (8) years. Many veterans are side-stepping this lengthy appeal by filing a motion for reconsideration.
The problem is the VA has no legal obligation to review or respond to your motion to reconsider. Their court process does not have provisions for a motion for reconsideration at this point in the appeal process.
If you file a motion at this point and the VA does not respond, you will likely miss the deadline for filing the Notice of Disagreement. When this happens you need to restart the entire claim application from the beginning.
When the Board of Veterans Appeals (BVA) makes a decision on a “perfected appeal,” it is an appeal is in proper form. To be in the proper form it must: 1) have a timely Notice of Disagreement, 2) issuance of a VA Statement of Case, and 3) a timely VA form 9 from the veteran or survivor in response to the Statement of Case.
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Motion for Reconsideration on BVA Decision
After the appeal is “perfected” the BVA will issue a decision. Once that decision is made, you have 120 days to appeal the decision to the Court of Appeals for Veterans Claims. The alternative is to file a Motion for Reconsideration of the BVA judge’s decision.
Filing a motion for reconsideration may impact your ability to file an appeal to the Court of Appeals for Veterans Claims. If the Chairman of the BVA does not grant your motion, you are not able to appeal for reconsideration to the CAVC.
If the BVA does grant your appeal, it will be assigned to a panel of Board judges. You will have 60 days to submit additional arguments or evidence before it goes before a panel for determination.
CAVC Denied Appeal With Memorandum Decision
If the Court of Appeals for Veterans Claims denies your appeal, you can attempt to file a motion for reconsideration. This is very tricky and you must carefully follow CAVC Rule 35 regarding motions for reconsideration.
Prior to filing this motion, you should speak with your attorney about the legal options available to you and the pros and cons of a motion for reconsideration vs an appeal.
In our experience, an appeal is always better because you have more time to gather new evidence, the VA is required to review your appeal (they are not required to accept your motion for reconsideration!) and you are more likely to get a new set of eyes on your claim through the appeal process.
Here, one of our VA disability lawyers talks about what we do when we appeal your case to the Veteran’s Administration.
Preparing a Motion for Reconsideration
When preparing a motion for reconsideration it must be done in a manner that follows the rules of the court where you are filing. Each court has different court rules and deadlines that must be met to avoid dismissal.
These rules include formatting properly with an appropriate court caption, case name, case number, motion title, and signature blocks. You must make sure that you state the appropriate rule under which you are filing the motion.
You then list in numbered paragraphs your case, including those things that have changed. You must state that the judge has made a palpable error in not awarding your benefits. Motions for reconsideration must raise overlooked areas, errors in math calculations, or new evidence that had the court known during the hearing the ruling would have been in your favor.
You must file the motion with the appropriate court, pay filing fees, handle service to all parties, and file proof of service with the court.
Documents You Must Include
You need to check the court rules in your jurisdiction on filing a motion for reconsideration. These motions have rules that vary from a general motion.
The court where you are filing the motion may require a sworn affidavit accompany the motion. The signature on a sworn affidavit must be before a notary public. The filing of the affidavit must be at the same time as the motion.
The court will likely require a brief to accompany the motion. Court rules may allow submission of the brief within a specific number of days following the filing of the motion. The brief restates the case and cites case law and rules that support your reasoning on why the court should reverse their finding.
You will need to reference and attach to your motion and brief any evidence supporting your position. You will also need to reference and attach a copy of your original motion and a copy of the court’s ruling that you are objecting to.
You can see why it is so hard to find out the time period to file a motion for reconsideration. It really depends on the individual judge that looked at your claim. Not only does the VA not have any obligation to answer it, they have no regulated time frame to look at it. If you have missed the 120 day due date for an appeal, filing a motion of reconsideration is not a good alternative.
If You Insist on Filing Your Motion
Before going to the court make sure you have sufficient copies of your motion, affidavit, and attachments so that you have one to keep for your own records, one you mark “judge’s copy” and a complete packet for all other parties on the case.
You file the motion at the court clerk’s office and pay a filing fee. The clerk will provide you with a copy on which they have stamped “filed” with the filing date. The clerk may keep and deliver the copy for the judge, or you may need to make that delivery yourself. The court keeps the original and returns all other copies to you for mailing.
You must pay attention to the court rules regarding proper service, which may be by standard first class mail, certified mail, or personal service. You will need to file a proof of service with the court after the appropriate service is complete.
No Court Hearing
A motion for reconsideration is not heard before a judge unless the judge requires one. There are no oral arguments and the judge’s decision is made through their reading of the motion and documents you submit to the court.
Courts are not favorable to frivolous filings, so you must make sure your motion has solid ground and includes new evidence. The Federal Rules of Civil Procedure, CR 59(a) sets forth the causes in which a motion for reconsideration may be filed.
Mistakes happen, but judges are not favorable to being told they have made a wrong decision. Therefore, for a motion for reconsideration to result in a positive change, it must produce new evidence not available at the time of the original hearing that would have brought about a different decision.
If you are simply dissatisfied with the decision of the court, the better course of action is to discuss filing an appeal with an experienced VA attorney like Woods and Woods, The Veteran’s Firm.
Why You Should Not File a Motion for Reconsideration
Filing a motion for reconsideration is only available after receiving the Board of Veterans Appeals and Court of Appeals for Veterans Claims decisions. Many veterans file a motion for reconsideration following an RO decision, but this can be detrimental to your ability to receive full back pay on your benefits.
When you receive a denial or a rating you do not agree with, you have one (1) year to appeal the claim or the claim is final. The purpose of appealing is to maintain your effective date. The effective date is the day on which you file your claim.
If you do not follow proper procedures you may lose your original filing date and a substantial amount of backpay.
Example Payout Following Appeal
- You file a claim for benefits on January 1, 2000
- The decision comes out on June 1, 2001, you have until May 31, 2002, to file an appeal
- You file an appeal, and after several appeals finally win on January 1, 2010
It has been ten (10) years since the original filing of your claim. You will now receive 10 years of backpay.
Example Payout Following Motion for Reconsideration
- You file a claim for benefits on January 1, 2000
- The decision comes out on June 1, 2001, and you have until May 31, 2002, to file an appeal
- You file an appeal, and an unfavorable decision is made on June 1, 2006
- No longer wanting to wait for another appeal decision, you file a motion for reconsideration
- You receive a denial on the motion for reconsideration, and now file an appeal
- You win the appeal on January 1, 2010
You will only receive only four (4) years of back pay. While you were waiting for a determination on the motion for reconsideration your time for filing an appeal lapsed. Because you did not meet the deadline, the appeal was treated as a new claim with a new effective date of June 1, 2006.
The date of the final decision was the same, but the amount of money you receive in back pay is substantially different because missing one appeal deadline changed the effective date. The average time for the VA to make a decision on a motion for reconsideration is five (5) to six (6) months.
The difference between 4 years of backpay and 10 years of backpay at a 30% (low!) rating is over $31,000.
Veterans Appeals Modernization Act of 2017
The Veterans Appeals Modernization Act of 2017 applies to all VA disability decisions received after February 19, 2019. The purpose is to streamline the VA appeals process by providing alternatives and accelerating the process for review of VA decisions.
Although you can file yourself, statistics show that you have a greater chance of success with legal representation.
A behind the scenes look at who works for you at Woods and Woods, The Veteran’s Firm.
Benefits of Filing an Appeal
The Annual Report for Fiscal Year (FY) 2018 shows that VA disability appeals have a success rate of 37.75%. This means that out of the 85,288 decisions made, only 30,492 were granted. Having a VA attorney that is knowledgeable in the law and VA rules increases your chances of success.
The largest number of appeals receiving approval at the BVA are those with an attorney. Only 13.79% of appeals receiving a denial have attorney representation.
When you file an appeal, the appeals judge is completely different than the one that made the decision. The judge will review the findings of the lower court to determine if an error was made.
The timeline for filing an appeal begins its countdown after the judge enters the ruling on your hearing. It is important not to miss this deadline because you will lose your eligibility filing date.
You should only consider a motion for reconsideration if there has been a drastic change in the evidence that supports your disability claim. The best course of action is upon receipt of a denial of benefits is to immediately schedule a consultation with a VA appeals attorney. We will advise you on the best course of action to take and will handle your case on a contingency fee, meaning you don’t pay any attorney fees unless we win your case.
Here one of our VA disability lawyers goes over the questions Woods and Woods, The Veteran’s Firm, is often asked about veterans’ disability claims and appeals.
Nationwide Representation
At Woods and Woods, The Veteran’s Firm, we have nationwide VA disability benefits attorneys to help you in filing your application or appeal. We have been representing veterans suffering injuries or disabilities since 1985.
No matter where you live in the United States, we can help. We never ask for any fees upfront, you only pay if we win your case. If you do not receive a benefits award, you owe us nothing.
Contact us by using our online form or call (866) 232-5777 to discuss whether a motion for reconsideration or appeal is the best course of action for your denial.
Yes, we can connect with the VA while we work on your case and be updated on all relevant due dates. Our system reminds our whole team about your timeline in case someone is out sick or on vacation, so your work won’t slip through the cracks.
When you call us, we’ll go through all of the paperwork you have, what the VA needs, and what we need to request. After we review your case, we’ll mail you all of the mailers you’ll need to send us your information. Again, we pay for all of the postage and fees and don’t charge you until we win your case.