My Nod For Forum Review.

[SpcDearman]

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)

[rdawg]

no SOC until a NOD is filed. No NOD filed just new evidence.

[broncovet]

If the Veteran receives a SOC, then he must respond with an I9 to "perfect" his appeal within 60 days. If the Veteran does not respond to the SOC, then the VA will consider the claim(appeal) abandoned. A SOC, remember, is a denial of at least a portion of the Veterans claim.

The instructions, on the I9 form, says it this way:

3. DO I HAVE TO FILL OUT THIS FORM AND FILE IT? Fill out this form and file it with VA if you want to complete your

appeal. If you do not, VA will close your appeal without sending it to the BVA for a decision. If you decide that you no longer want

to appeal after you have read the SOC, you don't have to do anything.

4. HOW LONG DO I HAVE TO COMPLETE THIS FORM AND FILE IT? Under current law, there are three different ways

to calculate how much time you have to complete and file this form. The one that applies to you is the one that gives you the most

time.

(a) You have one year from the day your local VA office mailed you the notice of the decision you are appealing.

(b) You have 60 days from the day that your local VA office mailed you the SOC.

© Your local VA office may have sent you an update to the SOC, called a "Supplemental Statement of the Case" (SSOC).

If that SSOC was provided to you in response to evidence you or your representative submitted within the one-year period

described in paragraph 4(a) of these instructions, above, and if you have not already filed this form, then you have at least

60 days from the time your local VA office mailed you the SSOC to file it even though the one-year period has already expired.

See 38 C.F.R. 20.302(b)(2).

There is one special kind of case, called a "simulataneously contested claim," where you have 30 days to file this form instead of the

longer time periods described above. A "simultaneously contested claim" is a case where two different people are asking for the 4

same kind of VA benefit and one will either lose, or get less, if the other wins. If you are not sure whether this special exception

applies, ask your representative or call your local VA office.

If you have any questions about the filing deadline in your case, ask your representative or your local VA office. Filing on time is

very important. Failing to file on time could result in you losing your right to appeal.

5. WHAT IF I NEED MORE TIME? If you need more time to complete this form and file it, write to your local VA office,

explaining why you need more time. You must file your request for more time with your local VA office before the normal time for

filing this form runs out. If you file by mail, VA will use the postma

[Berta]

Could you post the link to all that Broncovet?

I am under the impressions that the response time for a SSOC has been changed to 30 days and I posted that info here somewhere quite some time ago-----

[Berta]

Could you post the link to all that Broncovet?

I am under the impressions that the response time for a SSOC has been changed to 30 days and I posted that info here somewhere quite some time ago----- maybe in 2007 when this reg was proposed and maybe in 2009 when it became law.

[Philip Rogers]

I believe that when this "new evidence" is submitted and considered,

the claimant can also wind up receiving an SOC that provides for 30 or 60 day response timeframe.

When this happens a new NOD clock of one year would not start again.

Carlie - I believe anytime a decision is made, by the VARO(RO), the claimant has one yr to file a NOD. For instance: The RO makes a decision, on the evidence of record, at that time, and subsiquently receives medical records from the claimant's family physician, causing them to redecide the claim and either award or deny the claim. A new one yr NOD period would begin.

The problem is the RO rarely decides on the new info/evidence(as required) but just ignores it, causing a grievous error. Most claimants would assume the evidence was there when the first decision was made. I believe this is why so many attys will take claims to the CAVC using the EAJA, for payment. The RO's make so many errors "because they are not attys" that almost any claim can be found to have a remandable error.

pr

[carlie]

Here's an earlier effective date claim that relates to the

situation a claimant face's if they only submit evidence

within the one year NOD time frame provided for after notification,

versus submitting an actual NOD.

BVA determine that the "additional medical evidence",

submitted during the NOD time frame - was a 'notice of disagreement'.

The portion that is underlined below show's the pitfalls the claimt's issue for

effective date faced, at the VARO level. These are some of the same pitfalls

I've posted in this thread.

Had the claimant actually filed a timely NOD, they most likely

would not have had to go to the BVA to appeal the effective date.

BVA did grant the earlier effective date due to 3.400 (h) (1) and 3.105 (b).

Another point to consider for 3.105 (b) is underlined below.

(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under § 3.2600 without being recommended to Central Office.

This specific BVA case, gives great explanation on the intent of the law & regs and

when, why and how they are intended, to be applied.

The case is a bit longer than the copy & pasre I've done, so if you want to read the

whole decision, here's the link.

Anyways, I hope this helps a claimant win before having to appeal an

effective date to BVA or COVA.

http://www.va.gov/vetapp98/files3/9826856.txt

On July 31, 1996, prior to the expiration of the one year

period, the veteran asked for a reconsideration of the August

1995 rating decision and submitted additional medical

evidence in support of her claim.

Apparently the RO considered this a new claim and again denied entitlement to service connection for migraine headaches by rating decision dated in October 1996. She filed a notice of disagreement in

December 1996 and a statement of the case was issued in

January 1997 indicating that new and material evidence had

not been submitted to reopen the claim. The statement of the

case also indicated, erroneously in the Board’s view, that

the August 1995 rating action had become final.

Specifically, the Board finds that the July 31, 1996,

correspondence from the veteran, filed well within the one

year statutory period, was a notice of disagreement to the

August 1995 rating action and the March 1995 claim was, in

fact, still active.

Subsequently, by rating decision dated in May 1997, the RO granted entitlement to service connection for migraine under the provisions of 38 C.F.R. § 3.105(b) (1997), and a 10 percent evaluation was assigned effective July 31, 1996. Specifically, § 3.105(b) provides that whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than clear and error, the proposed revision will be recommended to Central Office. 38 C.F.R. § 3.105(b) (1997).

Having determined that the initial claim for migraine

headaches (filed in March 1995) was still active at the time

of the grant of service connection in May 1997, the effective

date of the grant of service connection under 38 C.F.R.

§ 3.105(b) can be determined under 38 C.F.R. § 3.400(h).

Specifically, as noted above, if there is a difference of

opinion (under 38 C.F.R. § 3.105) and the decision was not

final prior to receipt of an application for reconsideration

or to reopen, or prior to reconsideration of VA initiative,

the effective date is the date from which benefits would have

been payable if the former decision had been favorable.

38 C.F.R. § 3.400(h)(1) (1997). This is precisely the

situation here. The August 1995 decision was not yet final

prior to receipt of the veteran’s July 1996 correspondence

indicating a disagreement with the August 1995 rating action.

As a result of her July 1996 correspondence, the claim for

entitlement to service connection for migraine headaches was

subsequently granted under 38 C.F.R. § 3.105(b). Thus, the

effective date should be the date from which the benefits

would have been payable if the former decision had been

favorable.

The Board finds that the date the benefits would have been

payable had the original decision been favorable is the day

after service separation, that is, July 16, 1994.

Specifically, the veteran filed her original claim for

migraine headaches in March 1995, within one year from the

time of service separation. As noted, the effective date of

the grant of disability compensation (service connection) is

the day following separation from active service or date

entitlement arose if the claim is received within one year

after separation from service. Since the RO eventually

determined that migraine headaches were present during

service and post-service records showed recurrent symptoms,

the Board finds that entitlement to service connection arose

on the day following service separation and an effective date

of July 16, 1994, is warranted.

ORDER

An earlier effective date of July 16, 1994, for the grant of

service connection for migraine headaches is granted subject

to the law and regulations governing the award of monetary

benefits.