Technical Question

[betrayed]

Could a form 9 be a NOD? When the DVA informed me of my win, he faxed me the dro decision, sleep apnea wasnt listed. When I was on the phone with my VSO I questioned it and he said something about not submitting a NOD.

If you checked you do not want a BVA hearing then what is a form 9 used for?

In Block 9 you list the issues you want to appeal.

In Block 10 it states HERE IS WHY I THINK THE VA DECIDED MY CASE INCORRECTLY: Then you fill in your argument.

OK Heres the story, while in service my X wife used to tell me that she thought I had Sleep Apnea because I would stop breathing at night.

A year before I retire I see a ENT Specialist and he looked in my mouth and said I bet you snore real loud. I said yes my wife thinks I have sleep apnea. Someone wrote in my SMR possible sleep Apnea.

I retire and file for compensation but dont list sleep apnea.

I go to my C&P and the doc and I discuss sleep apnea, she writes it in the C&P Report.

I get 50% and am entitled to care at the VA hospital. June 04 I go to my very first appointment with the PA who is still my VA PCP. We discuss a laundry list of issues including sleep apnea. He puts in a consult for a sleep study. July 8th,04 I get a letter from the VAMC telling me I have a years wait for a sleep study, On July 25th, 04 I file for Sleep Apnea, Depression, and two others which I cant remember. Sep 05 I get a duty to assist letter including sleep apnea but no VCAA Form .Dec 2005 they denied sleep apnea and on Feb 3rd 2006 they mail the letter. Reason for denial no evidence of treatment or diagnosis. I cant argue with that, I dont file NOD.

I know somewhere somehtime I wrote them a letter and requested that the sleep apnea issue be deffered until I could get a sleep study. I cant find this anywhere, in my 3 ring binder my PC files maybe i just drafted it I dont know, my only hope is that THE DVA may have a copy of it.

Nov 2006 Sleep Study confirms sleep apnea, cpap sleep study also confirms sleep apnea.

DEC 2006 I send a fax to the DAV and request they forward it to the VA informing them of the diagnosis. I also fax a copy to the County VSO for their files.

Jan 07 I file a form 9 with 3 issues listed one of them sleep apnea, I check the box I do not want a BVA Hearing and tell them why I think they decided my case wrong on sleep apnea.

August 07 I have formal DRO Hearing (the one I just won won won) In the transcript Sleep Apnea is listed as a issue for the hearing.

Today I get my official big brown envolope for the VA. The info that I won won won came early from the DAV.

So in my official letter dated Jan 10. 2008

I also get a Letter to Assist with a VCAA election form.

In the first paragraph it states (last sentance) We are also working on your reopened

claim for service connection for sleep apnea and hemorrhoids.

Then in big black letters "What do we still need from you"

Then it states You were previouslly denied service connection for sleep apnea and hemorrhoids. You were notified of the decision on Dec 6 2005. (that is the date on the attached rating decision, but the award letter was dated Feb 3rd 06. The appeal period for that decision has expired and the decision is now final.

Now if you go up about 7 or 8 paragraphs you will see I submitted a form 9 1/22/07 which is under a year from the notification letter. Also the fact that this was discussed at the DRO Hearing as a issue ????????

The letter then tells me how to reopen a case with new evidence.

What do you all think????

[Ricky]

Could a form 9 be a NOD? When the DVA informed me of my win, he faxed me the dro decision, sleep apnea wasnt listed. When I was on the phone with my VSO I questioned it and he said something about not submitting a NOD.

If you checked you do not want a BVA hearing then what is a form 9 used for?

In Block 9 you list the issues you want to appeal.

In Block 10 it states HERE IS WHY I THINK THE VA DECIDED MY CASE INCORRECTLY: Then you fill in your argument.

OK Heres the story, while in service my X wife used to tell me that she thought I had Sleep Apnea because I would stop breathing at night.

A year before I retire I see a ENT Specialist and he looked in my mouth and said I bet you snore real loud. I said yes my wife thinks I have sleep apnea. Someone wrote in my SMR possible sleep Apnea.

I retire and file for compensation but dont list sleep apnea.

I go to my C&P and the doc and I discuss sleep apnea, she writes it in the C&P Report.

I get 50% and am entitled to care at the VA hospital. June 04 I go to my very first appointment with the PA who is still my VA PCP. We discuss a laundry list of issues including sleep apnea. He puts in a consult for a sleep study. July 8th,04 I get a letter from the VAMC telling me I have a years wait for a sleep study, On July 25th, 04 I file for Sleep Apnea, Depression, and two others which I cant remember. Sep 05 I get a duty to assist letter including sleep apnea but no VCAA Form .Dec 2005 they denied sleep apnea and on Feb 3rd 2006 they mail the letter. Reason for denial no evidence of treatment or diagnosis. I cant argue with that, I dont file NOD.

I know somewhere somehtime I wrote them a letter and requested that the sleep apnea issue be deffered until I could get a sleep study. I cant find this anywhere, in my 3 ring binder my PC files maybe i just drafted it I dont know, my only hope is that THE DVA may have a copy of it.

Nov 2006 Sleep Study confirms sleep apnea, cpap sleep study also confirms sleep apnea.

DEC 2006 I send a fax to the DAV and request they forward it to the VA informing them of the diagnosis. I also fax a copy to the County VSO for their files.

Jan 07 I file a form 9 with 3 issues listed one of them sleep apnea, I check the box I do not want a BVA Hearing and tell them why I think they decided my case wrong on sleep apnea.

August 07 I have formal DRO Hearing (the one I just won won won) In the transcript Sleep Apnea is listed as a issue for the hearing.

Today I get my official big brown envolope for the VA. The info that I won won won came early from the DAV.

So in my official letter dated Jan 10. 2008

I also get a Letter to Assist with a VCAA election form.

In the first paragraph it states (last sentance) We are also working on your reopened

claim for service connection for sleep apnea and hemorrhoids.

Then in big black letters "What do we still need from you"

Then it states You were previouslly denied service connection for sleep apnea and hemorrhoids. You were notified of the decision on Dec 6 2005. (that is the date on the attached rating decision, but the award letter was dated Feb 3rd 06. The appeal period for that decision has expired and the decision is now final.

Now if you go up about 7 or 8 paragraphs you will see I submitted a form 9 1/22/07 which is under a year from the notification letter. Also the fact that this was discussed at the DRO Hearing as a issue ????????

The letter then tells me how to reopen a case with new evidence.

What do you all think????

To answer your question the Form 9 is used to perfect an appeal after a SOC is issued. It is not a NOD. They NOD is a written letter to the VA telling them that you do not agree with their decision on an issue and it starts the appeal on an informal basis. The VA will then send you an election form asking if you want a DRO review (informal) or if you want to continue the appeal via the traditional method (formal). If you select the traditional method they will issued a SOC then you file the form 9. You can not file the form 9 until a SOC is issued. The SOC will not be issued until you have notified the VA that you disagree with their decision (NOD). Therefore, the form 9 is not a NOD.

From the way I read your post it looks like SA was never a NOD issue. I know you said it was in the transcript but keep in mind - the DRO will explain to you all issues at hand. If you bring up another issue, yes, it will be part of the transcript but the DRO can not issue a decision on an issue that is not on appeal at the time via the NOD. What he/she will do is inform you that you must submit a claim for the issue or sometimes if you are lucky they will treat it as an infered claim and open a claim for you.

In this case it looks like you NOD a couple of issues (not SA) then you sent in a form 9 with those two issues on it to include the SA, then you had your hearing as requested in your NOD, which would not include the SA. You certainly brought up SA as an issue because you had listed it on the form 9 (which should not have been submitted at that point by you because your NOD was pending). When you brought it up the DRO simply opened up an claim for you. Now you are at the begining stages of the claim due to the fact you have received a VCAA notice.

Since I can not look at your file it is kinda of hard to tell what has happened and all of the above is speculation. I think that what you need to do is continue based upon what the VA is doing now and gather your evidence for SA. You are going to need the doc to say that the symptoms you experience during service were those of you current SA. A letter from you ex about your snoring, stop breathing ect..... would be nice also. Once you get service connected then you can worry about the effective date if the effective date matters to you. jmho.

[betrayed]

1. The VA will then send you an election form asking if you want a DRO review (informal) or if you want to continue the appeal via the traditional method (formal).

2. You certainly brought up SA as an issue because you had listed it on the form 9 (which should not have been submitted at that point by you because your NOD was pending).

3. When you brought it up the DRO simply opened up an claim for you. Now you are at the begining stages of the claim due to the fact you have received a VCAA notice.

4. I think that what you need to do is continue based upon what the VA is doing now and gather your evidence for SA.

5. A letter from you ex about your snoring, stop breathing ect..... would be nice also. Once you get service connected then you can worry about the effective date if the effective date matters to you. jmho.

1. never has happened, I have sent in NODS, and I have requested the hearings, I have never experienced what you said.

2. There was no NOD Pending. Reason for denial no evidence of treatment or diagnosis. I cant argue with that, They were correct when they made that statement. The fact is After discharge I was tested and diagnosed and am being treated by CPAP issued by the VA. Its a shame I had to wait a year for the VA to get me tested................

3. I hope so Im not sure what the status is, in one part they say reopened case, then in another paragraph they tell me how to reopen. They also made a mistake about the dates of when they sent me a letter denied the claim. I submitted the form 9 within one year of the date of the letter they sent.

4. I am doing that, I found out that a Pulmonary Function Test will indicate sleep apnea, in January I had a PFT and the tech said you have sleep apnea, I said how do you know and he said you see that flat spot in the graph, that indicates sleep apnea. So I looked at all my other PFT Graphs (from active duty) and the flat spot is there. I researched a little so far and found on emedicine.com a article which basically says a PFT can diagnose sleep apnea. But here is catch 22 those graphs are in my SMR which has been prev submitted so they are not new evidence..............

5. NO way in hell, we dont talk.

6. The intent of my question was would a form 9 satisfy the requirements of a NOD, I know that a form 9 is not technically a nod, but I think it meets the requirements.

I will gather my evidence and talk with my VSO.

[Jim MAC]

1. never has happened, I have sent in NODS, and I have requested the hearings, I have never experienced what you said.

2. There was no NOD Pending. Reason for denial no evidence of treatment or diagnosis. I cant argue with that, They were correct when they made that statement. The fact is After discharge I was tested and diagnosed and am being treated by CPAP issued by the VA. Its a shame I had to wait a year for the VA to get me tested................

3. I hope so Im not sure what the status is, in one part they say reopened case, then in another paragraph they tell me how to reopen. They also made a mistake about the dates of when they sent me a letter denied the claim. I submitted the form 9 within one year of the date of the letter they sent.

4. I am doing that, I found out that a Pulmonary Function Test will indicate sleep apnea, in January I had a PFT and the tech said you have sleep apnea, I said how do you know and he said you see that flat spot in the graph, that indicates sleep apnea. So I looked at all my other PFT Graphs (from active duty) and the flat spot is there. I researched a little so far and found on emedicine.com a article which basically says a PFT can diagnose sleep apnea. But here is catch 22 those graphs are in my SMR which has been prev submitted so they are not new evidence..............

5. NO way in hell, we dont talk.

6. The intent of my question was would a form 9 satisfy the requirements of a NOD, I know that a form 9 is not technically a nod, but I think it meets the requirements.

I will gather my evidence and talk with my VSO.

Betrayed

I would file the form 9 plus send a letter askinf for a NOD hearing. Hey it worked for me what have you got to lose. Its not that its is new evidence its evidence they did not consider.

Jim

[betrayed]

Here is the answer to my question, I have not read it yet I got to get ready to go to the VAMC

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 19

RIN 2900–AL97

Board of Veterans’ Appeals:

Clarification of a Notice of

Disagreement

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: The Department of Veterans

Affairs (VA) is amending its regulations

governing appeals to the Board of

Veterans’ Appeals (BVA or Board) to

clarify the actions an agency of original

jurisdiction (AOJ) must take to

determine whether a written

communication from a claimant that is

ambiguous in its purpose is intended to

be a Notice of Disagreement (NOD) with

an adverse claims decision.

DATES: Effective Date: This rule is

effective October 30, 2006.

the rest is in the attachment, the board wont let me post it it says to many emotioncons

DEPARTMENT_OF_VETERANS.doc

[betrayed]

I think my form 9 meets the requirements of a NOD

FROM THE FORM 9 I Filed

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

I am the above named veteran. Please be advised that I am submitting to you today a VA Form 9 to protect my right to appeal those issues listed. I do not want this VA Form 9 to supercede my request for a hearing with a DRO which is currently pending.

NOW HERE'S WHY, THESE ARE EXCERPTS FROM THE ATTACHED DOCUMENT IN MY PREVIOUS POST

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 19 RIN 2900-AL97

Board of Veterans' Appeals: Clarification of a Notice of Disagreement

AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations governing appeals to the Board of Veterans' Appeals (BVA or Board) to clarify the actions an agency of

original jurisdiction (AOJ) must take to determine whether a written communication

from a claimant that is ambiguous in its purpose is intended to be a Notice

of Disagreement (NOD) with an adverse claims decision.

We agree that it would be helpful

to state this practice in § 19.26 and have added language to paragraph (:)

stating that, ''For written contacts, VA will mail a letter requesting clarification

to the claimant and send a copy to his or her representative and fiduciary,

if any.''

38 CFR 20.201, states that although ''special wording is not required,''

an NOD is ''[a] written communication from a claimant or his or her representative

expressing dissatisfaction or disagreement'' with an AOJ determination and

a desire for appeal

.Under this final rule, AOJs will be required to contact any claimant who, within one year after an adverse VA decision, files a written communication that is ambiguous in its purpose, if the communication expresses dissatisfaction or disagreement with an adverse decision but the AOJ cannot clearly identify that communication as expressing an intention to appeal.

Although

38 U.S.C. 7105 provides timeliness and filing requirements for an NOD, and

states that the NOD must be in writing, the statute is silent as to the

content of the NOD.

This rulemaking will not affect those existing

rules. Instead, this rule will enable VA to assist claimants who filed documents

that do not meet the well established statutory and regulatory requirements.

Finally, this rulemaking is properly within VA's rulemaking authority. It

imposes no new requirements on claimants and simply provides claimants with

an opportunity to clarify a document that, under current law and regulation,

VA would not be required to treat as an NOD.

. By requiring AOJs to seek

clarification of all ambiguous, potential NODs, VA will attempt to preserve

for continued appellate review appeals that may have been rejected in the

past as not fully meeting the requirements set forth in 38 CFR 20.201.

We proposed

to state in 38 CFR 19.26(B) that the AOJ would contact the claimant to request

clarification of a written communication received from a claimant within

one year after issuing an adverse decision. We also proposed to state in

38 CFR 19.26©(ii) that the claimant had one year after the date of mailing

notice of the adverse decision.

we are changing 38 CFR 19.26©(1)(i) to read ''60 days after the

date of the AOJ's clarification request.'' IV. 38 CFR 19.27 Finally, we

would clarify § 19.27 by slightly revising the proposed text, which required

an administrative appeal ''

38 CFR 19.50, and clarifies

that § 19.27 is referring exclusively to an intra-agency disagreement that

may be resolved through the administrative appeal procedures

For the reasons set forth in the preamble, 38 CFR Part

19 is amended as follows: PART 19-BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS

Subpart B-Appeals Processing by Agency of Original Jurisdiction 1. The authority

citation for part 19 continues to read as follows: Authority: 38 U.S.C.

501(a), unless otherwise noted. 2. Section 19.26 is revised and the information

collection parenthetical is added at the end of the section, to read as

follows: § 19.26 Action by agency of original jurisdiction on Notice of

Disagreement. (a) Initial action. When a timely Notice of Disagreement (NOD)

is filed, the agency of original jurisdiction (AOJ) must reexamine the claim

and determine whether additional review or development is warranted. (B)

Unclear communication or disagreement. If within one year after mailing

an adverse decision (or 60 days for simultaneously contested claims), the

AOJ receives a written communication expressing dissatisfaction or disagreement

with the adverse decision, but the AOJ cannot clearly identify that communication

as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the

AOJ will contact the claimant to request clarification of the claimant's

intent. This contact may be either oral or written.

Section 19.27 is revised to read as follows: § 19.27 Adequacy of Notice of Disagreement questioned within the agency of original jurisdiction. If, after following the procedures set forth in 38 CFR 19.26, there remains within the agency of original jurisdiction a conflict of opinion or a question pertaining to a claim regarding whether a written communication expresses an intent to appeal or as to which denied claims a claimant wants to appeal, the procedures for an administrative appeal, as set forth in 38 CFR 19.50-19.53, must be followed.

When an administrative appeal is entered, the claimant and his or her representative,

if any, will be promptly furnished a copy of the memorandum entitled "Administrative

Appeal," or an adequate summary thereof, outlining the question at issue.

They will be allowed a period of 60 days to join in the appeal if they so

desire.

Edited January 16, 2008 by BETRAYED

[Berta]

I think you prepared the I-9 in an excellent way-

same format I used-

if you have a DRO hearing pending I would think the NOD has already been filed- I dont understand why you consider the I-9 as a NOD.