Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

My Nod For Forum Review.

Rate this question


carlie

Question

Here is what I will be sending on Monday. i want to have the entire weekend for you guys to opine.

TO: Department of Veterans Affairs

This is a Notice of Disagreement with your rating decision dated 11-1-12 which denied my claim for bilateral shoulder, bilateral knee, and lung condition . I request my claim be afforded a de Novo review by a Decision Review Officer and a Statement of Case (SOC) be prepared and forwarded to me. I also hereby request all copies of my Service Medical Records to be used for review by my private physician.

Thank you.

Disgruntled Vet. (ok i might put my real name here lol)

Link to comment
Share on other sites

  • Answers 102
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

  • Moderator

Carlie

Read pages 4 and 5 of the link below. In this example the Veteran sent in new evidence after 360 days, and the claim Did NOT become final after a year.

I think I remember reading elsewhere where this new evidence, submitted in the appeal period, "tolls" the one year appeal period until the VARO at least responds to the request to reopen due to N and M evidence.

In other words, if the Veteran submits New evidence within the year appeal period, he is, in effect, disputing the decision by adding more evidence, and that has a similar effect as a NOD but with a DRO review.

Also see 38 CFR 3.156 (a). The claim remains "open" after the Veteran submits new evidence in the appeal period and does not necessarily become final in the one year appeal period.

I will add that I think the VA wants us to think that a claim ALWAYS becomes final after a year, but there is, at a minimum, this exception. The VA does not want us to think that will keep the claim open..they would rather we just drop our appeal.

Its hard to wrap your head around...I always believed, like you, that, no matter what, you dont file a nod in a year its final. Not necessarily so, says the NVLSP, but you may not get the "board" to recognize this and have to take it up at the CAVC level.

Edited by broncovet
Link to comment
Share on other sites

Carlie

Read pages 4 and 5 of the link below. In this example the Veteran sent in new evidence after 360 days, and the claim Did NOT become final after a year.

I think I remember reading elsewhere where this new evidence, submitted in the appeal period, "tolls" the one year appeal period until the VARO at least responds to the request to reopen due to N and M evidence.

In other words, if the Veteran submits New evidence within the year appeal period, he is, in effect, disputing the decision by adding more evidence, and that has a similar effect as a NOD but with a DRO review.

Also see 38 CFR 3.156 (a). The claim remains "open" after the Veteran submits new evidence in the appeal period and does not necessarily become final in the one year appeal period.

I will add that I think the VA wants us to think that a claim ALWAYS becomes final after a year, but there is, at a minimum, this exception. The VA does not want us to think that will keep the claim open..they would rather we just drop our appeal.

Its hard to wrap your head around...I always believed, like you, that, no matter what, you dont file a nod in a year its final. Not necessarily so, says the NVLSP, but you may not get the "board" to recognize this and have to take it up at the CAVC level.

bronco,

1)

Yes, I read it, but that situation nor this one in this topic is relative to 3.156a,

3.156b would be for application.

3.156 (a) relates to submitting N&M evidence on a Finally Adjudicated Claim in order to re-open

the claim.

3.156 (b) relates to submitting N&M evidence on a Pending Claim,

received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

2) In relation to this topic, the laws/regs and M21-1MR instruction that pertain to reconsideration

are not inclusive at the VARO level - sure, a claimant can request the VARO to reconsider, but this

action is not supported by any USC, CFR or M21-1MR. If the VARO does not correctly acknowledge

this request, and takes it as a new claim, which I have found in several BVA decisions -

that original effective date may well be out of gas.

Here are the claimants pitfalls for consideration.

(1) if no new and material evidence is submitted within one year than technically the prior rating decision is final regardless of the supposed request for reconsideration;

(2) even if certain evidence is submitted, if the RO does not consider the evidence new and material, then again technically the rating decision is final; and

(3) you are relying on the RO to notice that there was a prior rating decision and new and material evidence was filed within a year of the prior rating decision.

I continue to stand on filing a NOD, well within the one year time period allowed.

I feel doing otherwise is poor planning on the part of the claimant.

After all - many times the struggle is difficult enough as it is - why take such an obvious risk

on the earlier effective date in leaving it to chance by simply not submitting the NOD.

The appeal process takes enough time and toll on claimants already.

I can surely see a claimant utilizing 3.156 (b) after the fact if necessary and available, but why

would one make that mistake from the get go and take such an unnecessary risk.

JMHO

Link to comment
Share on other sites

I'm not talking about new and material evidence to reopen an already final claim. That is not SPCDearman's situation.

Once you receive a decision on a claim you have up to one year to submit new evidence. The VA must consider this new evidence, even if it is not new (dupliticave) or material. The one year appeal and new evidence period starts over again once another decision has been made.

His situation is mine almost exactly. I eventually withdrew my nod and asked for reconsideration based on an IMO from Bash. The year appeal period came and went while they were evaluating my IMO. They awarded SC and I kept my mar 06 effective date.

Dearman has one year from nov 1 2012 to submit new evidence or file a NOD.

Link to comment
Share on other sites

I'm not talking about new and material evidence to reopen an already final claim. That is not SPCDearman's situation.

I am in agreement with the above, and this is the exact situation that is applicable to 38 CFR - 3.156 (b)

3.156 New and material evidence.

b) Pending claim.

New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

Once you receive a decision on a claim you have up to one year to submit new evidence. The VA must consider this new evidence, even if it is not new (dupliticave) or material.

If this "new evidence" you submit is cumulative evidence or evidence already considered in

the prior decision - what USC or CFR supports your theory that

"The VA must consider this new evidence, even if it is not new (dupliticave) or material."?

The evidence must be determined by VA to be both new & material.

A claimant clearly, is afforded one year to submit a NOD.

The one year appeal and new evidence period starts over again once another decision has been made.

The above is correct, if the decision becomes final, N&M evidence will be required to reopen

the claim again, and assignment of effective date will be open to errors.

His situation is mine almost exactly. I eventually withdrew my nod and asked for reconsideration based on an IMO from Bash. The year appeal period came and went while they were evaluating my IMO. They awarded SC and I kept my mar 06 effective date.

I understand your situation and adjudicative actions stated above.

What is of importance is that there are no USC laws, 38 CFR regs or M21-1MR instruction

that addresses a request for reconsideration at the VARO level.

In other words the VARO does not have to accept a claim for reconsideration as there are

no must do process for it, at the VARO level. The VARO does not have to accept a request or

application of reconsideration from a claimant.

3.400 General

(h) Difference of opinion3.105 ).

(1) As to decisions not final prior to receipt of an application for reconsideration or to reopen,

or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable.

Your VARO must have considered the IMO from Dr. Bash to be both new and material evidence

and or considered this N&M evidence (the IMO) along with the previous evidence of record

contained in the prior decision inorder to support the new decision.

Being that you submitted this evidence prior to the earlier decision becoming final, you continually

prosecuted your claim without failure - that's why the "mar 06 effective date" was warranted.

3.156 New and material evidence.

"New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."

Of course the reopened portion of the reg above does not apply to you or SpcDearman.

Dearman has one year from nov 1 2012 to submit new evidence or file a NOD.

The one year to file a NOD is certainly correct and if done in a timely fashion,should preserve the effective date,

which will certainly help limit the possibility of error in the eventual assignment of the effective date.

The claimant is allowed to submit additional evidence with the NOD and all the way up to when a

decision is made.

Why would one not want to ensure the preservation of that effective date being locked in ?

The "has one year from nov 1 2012 to submit new evidence" offers more room for error

in the preservation of the effective date.

I posted several pitfalls and reasons for possible errors in the assignment of effective date,

this type of action on the claim, will leave the claimant vulnerable to.

It is in the best interest of a claimant to keep the VBA's margin for error, as low and tight

as possible.

BTW - I think this topic and thread is great debate in hashing out the application of regs.

JMHO - carlie

Link to comment
Share on other sites

  • Moderator

Carlie

I do not dispute the best way is to file a NOD within a year. Period. However, if you did not, but you did file new and material evidence, a claimant can use that to secure an earlier effective date, as per the NVLSP's "common effective date errors" link, below.

There is no doubt the VARO and probably the Board will mess this up and you will have to take it to the CAVC to get it straightened out. So, the best thing is, as you say, to submit the NOD anyway. However, if you have an unappealed claim and YOU SUBMITTED NEW AND MATERIAL EVIDENCE prior to the expiration of the one year period, then, by all means, use the NVLSP's advice to secure an EED.

Link to comment
Share on other sites

  • Moderator

There is a lengthy and very detailed discussion of the "pending claim doctrine" here: (New and material evidence can "keep the claim pending", as can a timely filed NOD)

http://www.bva.va.gov/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf

This is well written, by attorney's, and supported by case law. However, there can obviously be case law after the article was written that "changed" some or even all of this. VA law is in constant flux...being altered each time there is a new precedential CAVC or Federal Circuit decision.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use