Over the years, I have commented how the informal process of “reconsideration” of an initial VA Rating Decision simply does not exist in regulation or statute. I previously commented, “This practice has permeated through some of the Regional Offices . . . but with no predicate in law and, therefore, little protection for the veteran.”
While the notion of “reconsideration” from a Rating Decision still really does not exist in regulation or statute, the Department of Veterans Affairs recently amended the VA Adjudication Manual to include specific guidance on “reconsideration” of Rating Decision by the Agency of Original Jurisdiction. This document is the procedural manual for VA field personnel and, in many circumstances, has the binding effect of law. See generally Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) (“VA interpretations of its own regulations in its Adjudication Procedures Manual [M21–1] are controlling as long as they are not ‘plainly erroneous or inconsistent with the regulation.” (internal citations omitted)). This is a good thing . . . without considering the application of the Administrative Procedure Act’s rulemaking provisions nor lingering questions I have concerning existing regulatory provision within Title 38.
The new section for “reconsideration” is located at M21-1, Part III, Subpart ii, 2.F (August 2015). To end the internet snipe hunt and to assist veterans and VSOs alike, I have uploaded the section at the following link M21-1, Part III, Subpart ii, 2.F (August 2015).
As evidence in M21-1, Part III, Subpart ii, 2.F, “reconsideration” is not applicable when the claimant/veteran simply disagrees with the prior Rating Decision. Its intended when the veteran/claimant has new evidence related to an element that formed the basis for the prior, non-final denial.
Just because I like the movie, to quote a Few Good Men: “I strenuously object?” Is that how it works? Hm? “Objection.” “Overruled.” “Oh, no, no, no. No, I STRENUOUSLY object.” “Oh. Well, if you strenuously object then I should take some time to reconsider.” To answer another question posited to me over the years: (1) Yes, I was a defense attorney in the military; (2) No, I never stated in court “you are out of order!”; and (3) No Comment, whether I can recall a case involving a Code Red.