tdiu Another Loop In The Roller Coaster.....

[StreetWalker]

Filed for TDIU in July of 2012 Denied in January of 2013 Filed for reconsideration with new and material evidence - Denial of VR&E due to severity of SC disabilities and statement from PCP stating I'm unemployable directly due to SC disabilities in April of 2013 Gathering of dust till November 2013 Kicked back to Gathering of Evidence" in November 2013. Received letter stating I needed to submit new and material evidence. Went down to RO and talked to VSO. They had proof of New and Material evidence being submitted with request for reconsideration, we also resubmitted the evidence. December 27, 2013 C&P exam request. Still waiting on letter or phone call. Chances are I won't receive the letter from 7 miles away till Tuesday evening after the VA has gone home. Anything "mailed" at the Portland RO on a Friday is not actually picked up my the PO till Monday. The USPS delivery station for the RO is in the same building. However they receive their mail very early and this is when mail is picked up. They are too damn lazy to ride the elevator down two floors and walk 100 feet to mail the stuff the same day it's created. Wish me luck. I've been unable to work since July 23, 2012. SSA granted SSDI in less than three weeks solely for my SC back injury. Rated 40% for lumbar spine and 20% radiculopathy for each leg.

[carlie]

I understand that. My VSO however says that the clock doesn't stop till the reconsideration is done. She just spent two years handling appeals at the BVA level in DC. I'd guess she knows what she's talking about.

IMO - your VSO should have advised submission of your NOD w/ N&M.

After a decision is rendered a claimant has one year to file a NOD - PERIOD.

I don't care that she has been handling appeals at the BVA level for 2 years -

the NOD clock does not stop.

It is my understanding that this is pretty much carved in stone for effective date purposes.

With the request for reconsideration and submission of N&M evidence the VA will

"treat" it as a reopening of the claim/issue, and your earlier effective date most likely

will go bye-bye.

She is most likely counting on # 2 below - but there still has to be a NOD submitted within

one year.

This has been my understanding for around 15 years now and I don't know anywhere

it has changed in 38 CFR or 38 USC.

Perhaps others will chime in or perhaps your VSO can show you here version in writing.

If my understanding of this is incorrect then many veterans are owed even many more dollars

and I'm sure members will be quick to correct me on this.

Here's what I have to support my opinion on this.

e-CFR Data is current as of December 26, 2013

§20.302 Rule 302. Time limit for filing Notice of Disagreement, Substantive Appeal, and response to Supplemental Statement of the Case.

(a) Notice of Disagreement. Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(Authority: 38 U.S.C. 7105(b)(1))

(b) Substantive Appeal—(1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.

(2) Special rule in certain cases where additional evidence is submitted. Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with §19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))

© Response to Supplemental Statement of the Case. Where a Supplemental Statement of the Case is furnished, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal.

(Authority: 38 U.S.C. 7105(d)(3))

[57 FR 4109, Feb. 3, 1992; as amended at 66 FR 50318, Oct. 3, 2001; 68 FR 64806, Nov. 17, 2003; 73 FR 40748, July 16, 2008]

[meghp0405]

Carlie,

Everything you stated is correct.

I would like to add one thing (although I've seen nothing in writing on this), we are told that when a veteran receives his/her rating decision and they disagree with any part, they are to submit an NOD on the VA FM 21-0958. If the vet submits a request for a re-consideration the VA turns around and sends them a Form 9 to fill out and return. The veteran would be better off (if he/she has the N/M evidence) to submit an NOD and request the DRO (IMO).

One thing that I do not like about the new NOD form, is if a veteran has a POA (and most do) there is a block on the form that the veteran annotates if they want a rep from the VA to call concerning the NOD. This can be bad or good, depending upon the level of expertise of the veteran submitting the claim because it completely eliminates the POA from being contacted. I see problems with this (?)

Rick

[Loose Cannon]

One thing that I do not like about the new NOD form, is if a veteran has a POA (and most do) there is a block on the form that the veteran annotates if they want a rep from the VA to call concerning the NOD. This can be bad or good, depending upon the level of expertise of the veteran submitting the claim because it completely eliminates the POA from being contacted. I see problems with this (?)

Maybe their POA is the Winston Salem DAV. If it is then the VA is never going to get a call returned. Perhaps the new form was designed with them in mind?

Sorry...I had to take just one more shot. Please forgive me all... :-)

LC

[Berta]

"Denied in January of 2013"

Carlie and Meg are absolutely correct.

There is discussion her between me an a DAV rep (Rakkwarrior) he did delete some of it....that turned almost into an argument over the NOD deadline and Recon Requests.

I had to post BVA decisions to him to prove that a reconsideration request does NOT stop the NOD clock.

He had been telling vets it did.

The VA deliberately tried to piss away my NOD deadline by sending me BS on a recon request that made it appear they were working on it.

I had marked my calender and filed the NOD within days of my deadline, and succeeded on that claim last year at the Nehmer VARO.

I posted here somewhere the actual NOD info from M21-1MR.

Also there is a condition to the NOD deadline in M21-1MR .....it can be extended for good cause but the VA has never defined good cause.

I filed a timely NOD on a different claim last year but also asked for the NOD extention, with what I felt was legally a very good cause.

My point was that the VA had committed a CUE in their decision, which I filed a Cue Yourself request on,prior to the NOD , and a claimant cannot properly file an NOD on a decision that contains a clear and unmistakable error that is detrimental to the claimant.

If they correct their legal error in the decision which I clearly identified, however, I stated, the NOD and the NOD extension request will become moot issues.

(This claim has been with a supervisor for many months now......I cant wait to see how they handle it. I think by now my RO hopes I will croak.Ha Ha.)

I love using their regs against them and M21-1MR ,in some cases, can sure help one do that.

Edited December 30, 2013 by Berta

[StreetWalker]

Thanks everyone. Guess I'll have to go down and have another chat with her. I was going to file a NOD but a DRO here in Portland is taking around 2 years or more. I'm hoping to hear from the VA today regarding the C&P appointment. If I can get that scheduled in the next few days I'll start riding the RO like a rented mule. I have till the end of next month to file the NOD.

[carlie]

Thanks everyone. Guess I'll have to go down and have another chat with her. I was going to file a NOD but a DRO here in Portland is taking around 2 years or more. I'm hoping to hear from the VA today regarding the C&P appointment. If I can get that scheduled in the next few days I'll start riding the RO like a rented mule. I have till the end of next month to file the NOD.

At this point I would submit the NOD on time, IN PERSON - AT THE VARO,

and leave there with a date stamped copy.

jmho