Form 9 Reference?

[jecsb4]

Hi All,

I read that Berta has placed a link here for some Form 9 guidance. I am trying to locate it, can anyone assist.

I also realized that recently, the VARO asked me for any additional info, I did submitt some and also the VA VCAA Notice Form requesting the additional 60 days before they decide my case. Yet 2 weeks later, I get the SOC!

Joe

[Vike17]

jecsb4,

It looks like the VA sent you the "Duty to Assist" letter in reference to possibily the claims that weren't addressed either in the forth coming rating decision or the SOC you just received. Are the issues listed on the "Duty to Assist" letter the conditions that weren't addressed in the SOC????

Vike 17

[Berta]

NVLSP suggests adding this into the part where it says about the hearing etc:

"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."

Then under question# 10 State the Issue briefly and then immediately tell them why they are wrong.

I suggest doing this not on the form but in Word and then edit it to fit on page one.

I made sure I measured what I typed and then pasted in to the actual I-9.

You can certainly add more pages to the appeal but I say hit them hard right away-with the facts and why they were incorrect in their decision.

I discussed the I-9 with Ron ABrams- NVLSP not long ago-

as although my I-9 passed from VSR to rater etc etc etc and then to my POA many times-

it apparently was never even read-

I stated exactly why they were wrong and got a remand in weeks- as it had been transferred illegally-so it could not even be docketed-

I bring this up again here-my case- because it appears to me that VA has already violated your DTA rights with the SOC.

This is unacceptable and I suggest you send them an Iris inquiry(make it a service complaint) as to the fact that they did not honor the 60 day period.

Are you sure the VCAA was a legal one?

There are thousands of remands at the BVA due to deficient VCAA letters.

The VCAA letter MUST comply with Pelegrino V. Principi-

The VCAA Notice must come with an election form.

No election form- the claim is doomed in la la land---

The VCAA letter -did it state specific evidence and did you do yout best to send them (with proof of mailing) what they asked for?

If it was a question of maybe a buddy statement they said you needed and could not be gotten in 60 days

did you ask them for more time to secure this evidence?

Seems to me their crystal ball told them to send the SOC before they should have-

the VCAA Veterans CLaims Assistance Act contains no crystal ball provisions.

I think your vet rep should support you on this-

the VA has failed to consider the 60 days and I cannot understand why-

IF you sent them probative evidence within 60 days of the VCAA notice.

Then again-Did the SOC say this evidence was received and it was cummulative or redundant to prior submissions from you-or not specific to the claim? in the SOC -did they even list this and refer to what you had sent in the SOC?There could be a rationale and legal reason that they circumvented the 60 days- I just have no idea-what that would possibly be.

In any event doesn't the SOC give you an additional 60 days to respond?

If it has not been listed or considered as evidence yet this is more one chance to have the RO consider it.

The I-9 -not a time for long renditions or war stories or emotional 'appeals'- I have seen some like that-

the BVA has lawyers who focus solely on what all lawyers focus on-

evidence---

evidence of nexus and evidence of current and diagnosed disability-

they are quick to see if a claimants VCAA rights have been violated and will remand if that violation is detrimental to the veteran.

In the decades I have follwed the BVA- there decisions are by far better then in the 1990s and they state very clearly why they deny or grant or remand a claim.

I have only seen one BVA decision in the past 2 years that didnt seem right.

SO they look at claims with far more attention than the ROs and they consider all the evidnce they have.

[jecsb4]

Berta,

As far as I know the VCAA was the standard form where you check the block that says to decide the claim as I do not have more evidence or the other block that says I have more info wait 60 days. I then sign it.

I then handcarried the form into VARO and got a date stamped copy. VA then gave me a SOC in 2 weeks wirth only a partial grant. Meanwhile I have been developing more med evid by going to VA foot doctors and they have not see this data. I will have to submitt this supporting med info.

Are we talking about the same form? The form I got said VCAA NOTICE RESPONSE at the top with my name & SSN. I had to elect on og the options stating I did or did not have more evidence.

Yes the SOC does give me 60 days to respond.

VIKE17,

No there was not Duty to Assist letter. Just the SOC which listed what evid they considered.

Joe

[Vike17]

jecsb4,

When you said;

"I also realized that recently, the VARO asked me for any additional info, I did submitt some and also the VA VCAA Notice Form requesting the additional 60 days before they decide my case"

I'm willing to put money on it that that was a "Duty to Assist" letter; especially if the VA asked you for specific information regarding a claim and enclosed a VCAA Response Notice!

"No there was not Duty to Assist letter. Just the SOC which listed what evid they considered."

You also stated that you received a letter asking for additional info and then two later received a SOC. These are two seperate things and should not be confused with each other!

You need to read the "Duty to assist" letter carefully along with the SOC and see what claims are on both of them. Again I'm willing to put money on it that the DTA letter received two weeks prior to the SOC has totally different issues on each of them!

I find it hard to believe that the VA could turn around and process any new evidence, or even the VCAA response with no new additional evidence with the claimant stating to not wait the 60 days to further work a claim for that matter, within less than two weeks and then write a SOC on those issues in that DTA letter!

Vike 17

[jecsb4]

VIKE17,

Ok, I may have a "Duty to Assist" letter. It's a little hard to tell, because it doesn't say that anywhere on the form. But it is asking for more evidence. So, you are as usual correct.

He is where I think they didn't give me enough time...This letter is dated Apl 20 and is asking about info only for bilateral plantar fasciitis.

On May 6, I gave the VARO (have hand stamped copies) additional info. On June 2nd, I receive a SOC dated May 31 and VA grants me this: evaluation of bilateral plantar facciitis currently at 0 is increased to 30. They give an effective date and say this is a partial grant of benefits sought on appeal.

So they haven't decided on several of my other issues in my NOD and it seems to me that they didn't give me the 60 days I asked for when I signed the "VACC Notice Response" and checked the block stating I have more info and want the additional 60 days.

Now my SOC does say I have 60 day's but it seesm like they short changed me. I plan on having more med evid form the VA Dr. of Podiatry. My doctor said my feet are SC and are one of the worst he has seen.

The VA low balled me when they gave my 0 and they low balled me again on my NOD when they gave me 30!

jecsb4

[Vike17]

jecsb4,

It appears the VA granted an increase from 0% to 30% based on the "additional info" you submitted along with the VCAA Response Notice on May 6. However, since you did submit the VCAA Respponse notice indicating you had more evidence to submit other than the info you attached to the response notice, the VA should have waited the approximate additional two weeks. The time between the submission of the VCAA response notice and the SOC is almost 4 weeks, not the mear two weeks previuosly posted, which could have been enough time to process the "additional info" you submitted. The VA did grant a 30% evaluation, which according to the rating schedule states;

"Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral......30%"

The next higher rating, which is also the maximum allowed for this condition is 50%. The criteria states;

"Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances:

Bilateral.......50%"

So now you need to determine whether the VA assigned the correct rating based on the evidence you already have submitted or could have submitted. The VA may have rated this correctly based on the evidence, I don't know, I don't have your claim in front of me to say one way or the other. If the VA did rate this correctly based on the evidence you did send in or any additional information that still may be forth comming, then it is a moot point whether or not the VA should have waited the additional two weeks before making a decision. If any evidence that could have been submitted in the remaning two weeks warranted the same evalution i.e. the 30%, it wouldn't make any difference if they waited that addition time. I thing I do have to admit is the 3 1/2 to 4 week turn around from the time of the submission of evidence to a any type of decision whether it be a rating decision or a SOC is really, really fast for the VA! However, like i said before, the two weeks they didn't wait may not make any difference in your case. You'll need to look over any additional evidence that he VA doesn't have and make a determination as to whether that evidence may warrant the 50% rating. On the SOC there should be an explianation of why the VA couldn't assign the highest rating allowed by the rating schedule, in this case a 50% evaluation for this disability. If you do decide the additional evidence may warrant the higher rating, simply state that on the Form 9 and attach the evidence to it.

As far as the other stuff not mentioned in the SOC, you'll need to see if it is rated in the forth comming rating decision, or if not, there is any pending action on them which would cause the VA to decide those issues at a later date. If this is also not the case and the VA dropped the ball and missed these issues all together, simply state this on the Form 9 also. Before your case is certified to go to the BVA, the RO will complete any action needed on them before they do send your claims folder to Washington, D.C.

Vike 17