Waiver reconsideration vs. Form 9 appeal

Question:

Hi, Jim, I have a question. I am a claims rep for American Legion, and have a case of over-payment where the waiver was requested late, and was promptly denied based on timeliness. I appealed that for the claimant's protection, and then began to dig into the case. I discovered that the 1st Demand Letters were mailed to an incorrect address, even though VA knew the claimant had moved. I then asked for the waiver to be reconsidered on its merits (including no fault on the claimant's part, and extreme financial hardship), based on incorrect mailing of the Demand Letters, Reconsideration of such a simple issue is significantly faster than an appeal. I am now being told that the waiver can't be reconsidered, because there is a Form 9 appeal on the issue, and it is now "in BVA's jurisdiction". My understanding was that an appeal in progress does not preclude reconsideration of the same issue, when significant new evidence comes to light. What is the story on this?

Jim's Reply:

Appeals to any other discipline within VA, other than disability claims/denial appeals to VBA, are dicey at best. While we usually think of the appeal as a well structured path to ensure due process to a claim made by a veteran, that rarely is the case. A good example is trying to appeal a decision for payment of civilian emergency care at the VHA. The appeal of a denial of payment should go to the director of the facility first and then to the director or designate of the VISN that controls the health care facility and all this isn't very well defined for the veteran or the VHA folks either. Ultimately the Form 9 sends it all to the BVA for appeal and there it will languish for 5 or more years. Interestingly...although the term "reconsideration" is bantered about every day, you won't find the words in the VBA manuals...reconsideration of a denial only exists at the VHA.

Over at the VBA the routine is pretty clear that a NOD initiates an appeal and the NOD goes either to DRO process or to BVA. Of course all that changes now with RAMP being introduced. I'd have to guess that your appeal will now have to go through the BVA process and there isn't another alternative.