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Va Claims They Didn't Get My Appeal


jecsb4

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Hi ALl,

I received a SOC and I submitted a reconsideration on the 58 day of the 60 day limit. I hand carried it to the VARO and got a stamped copy for my records.

SO said it was in stange 1 pre-determination a few weeks ago. I called the VA and they said they received no Form 9 or reconsideration and closed the case.

Do I have any recourse at the local level to avoid the BVA? Am I forced to submitt a new claim and lose my retro date?

I have proof I met the timeline.

Thanks.

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"I have proof I met the timeline." By all means push that point- I suggest you scan your Proof of mailing and enclose it with a FAX to the director of this VARO.

Your SO- did he send in a 4138 in support of the appeal?

Wouldn't he too have proof it was filed?

The PCs at most vet reps offices generate 2138s directly to the VA.

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By the way -I mentioned here some time ago that VA had proposed a new rule to limit this SOC response time to 30 days and drop the 60 days.

I made strong public comment on this at the Fed Reg site and urged others to do that too.

I have no idea if this reg will go through-

how many vets can get an appt with their reps within 30 days and how many vets can get additional evidence within 30 days-

it is difficult for any disabled veteran (and also stressful) to have their response prepared in time limits like this.

It is just one more way to make the claims process difficult for veterans.

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I was in the mist of training VSO's so I submitted the 4138 myself.

I do have a stanped copy for the proof.

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jecsb4,

I sent my form 9 into the RO in May. Didn't hear anything, so sent question via iris asking when I could expect to receive notification that my case had been sent to the BVA. They responded that my claim was closed because they didn't receive my form 9!

I sent it via certified mail return receipt required, and told them so. I then sent another copy with a copy of the return receipt. When I asked about the status (about a month later) I was told that a decision had not been made yet.

Now I'm wondering, what decision? If the form 9 was really sent in in time, or on my claim? I finally found one sentence in the VBA that may, or may not, shed light. It says that once the form 9 is received, unless new evidence or argument was included that would result in a new decision or a new statement of case, the case would be sent to the BVA.

Does anyone know how I could find out if a new decision is actually being made or if they are just trying to delay my case longer?

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Jecs - I think that what may have happened in your case is although you requested a reconsideration you still had to file the form 9 within the 60 days. As we have discussed before on Hadit, even if you file a reconsideration on an original rating decision you MUST be wary of the one year time limit to file a NOD. No action that you take in the VA process relives you of your responsibility to meet any/all time requirements.

Now if you had filed the form 9 along with the reconsideration on day 58 they would have had to review the case again if the evidence you submitted with the reconsideration was determined to be truly "new evidence". When your SO said it was in pre-determ it probably was since something had been filed. The predeterm guys looked at the reconsideration then looked for a form 9 to perfect the appeal. When they did not see the form they closed it.

Since you did not file the form 9 (at least that is how I read your post) I am afraid they may have you on this one and the only other avenue of approach is a re-opened claim. Unless I read your post wrong and you have proof that you turned in a properly completed form 9 - if that is the case you have a leg to stand on!

Edited by Ricky
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"I sent my form 9 into the RO in May"

VA tried to pull something like this on me some time ago-here is the reg-I responded to an SOC with the evidence they had ignored- they tried to use my response as my formal appeal-which was real nice of them but I reminded them of this reg and sent a formal appeal(I-9) as well. You should file an I-9 within the 60 days- but still you have the one year limit as well.

from: http://www.va.gov/vetapp95/files6/9525009.txt

"Appellate review of an RO decision is initiated by an NOD and

“completed by a substantive appeal after a statement of the

case [sOC] is furnished . . . .” 38 U.S.C.A. § 7105(a) (West

1991); 38 C.F.R. § 20.200 (1994). After an appellant

receives the SOC, he or she must file a formal appeal within

“sixty days from the date the [sOC] is mailed,” 38 U.S.C.A.

§ 7105(d)(3) (West 1991), or within the remainder of the one-

year period from the date the notification of the RO decision

was mailed. whichever period ends later. 38 C.F.R.

§ 20.302(:rolleyes: (1994); see Rowell v. Principi, 4 Vet. App. 9, 17

(1993); see also Cuevas v. Principi, 3 Vet. App. 542, 546

(1994) (where claimant did not perfect appeal by timely

filing substantive appeal, RO rating decision became final).

This time barrier may be extended “for a reasonable period on

request for good cause shown.” 38 U.S.C.A. § 7105(d)(3)

(West 1991); see 38 C.F.R. § 20.303 (1994). See generally

Roy v. Brown, 5 Vet. App. 554, 556 (1993) (discussing failure

to file timely appeal)."

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Berta,

I did send in the form 9 within the 60 days (certified mail, return receipt) and they even signed for it within the 60 day limit. Then said it wasn't received. I sent another copy (again certified w/return receipt) with a copy of the original receipt they signed. Now they're saying they haven't made a decision on it yet. I thought the BVA made the decisions on if the substantive appeal was timely filed, not the RO.

So, is it possible that the RO now means to give me a completely new CUE decision, instead of sending it up to the BVA? That would make me think they've decided to admit their CUE and award my retro. What do you think?

--------

I finally got someone at the RO's 800 number who was willing to give me an answer. They are now acknowledging timely receipt of my form 9 - Yeah! And she explained that since I had included additional argument with the form 9, the Decision Review Officer now had to reply with either a new decision in my favor or a Supplemental Statement of Case.

Thanks Berta for ALL the information and advise you post (both now and in the past). Without your encouragement and support I would never have made it this far! You told me long ago to never send anything to the VA without getting confirmation of receipt. That really saved my bacon this time!

Edited by Angela
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Angela -good to hear from you-

"I thought the BVA made the decisions on if the substantive appeal was timely filed, not the RO."

By law (which the VARO doesn't seem to remember sometimes-an I-9 should be read carefully and then it is possible to have another decision come from the RO- saving the years of rigamorale at the BVA-remanded back etc.

In the 1990s I filed an I-9 but still my appeal was awarded at the RO level when they began to actually read my evidence.

I filed an I-9 on a newer claim in early 2006 and then requested an immediate remand from the BVA(which I got) because of legal errors in the transfer to the BVA.

In my opinion a properly prepared I-9 can turn around a denial -if someone reads it-

I have a phone log of 6 months of movement of my main claim after they got the I-9 to numerous adjudicators and raters , even the RC and the VSM,as well as my vet reps- and all that time I dont think they even read the I-9-

if they did I would not have been sent to the BVA- but I came back quickly.Due to the legal errors I raised in the I-9 itself.

"So, is it possible that the RO now means to give me a completely new CUE decision, instead of sending it up to the BVA? That would make me think they've decided to admit their CUE and award my retro. What do you think"

That is quite possible Angela- hard to really say though-

I believe in being cautiously optimistic all the time- then again we are dealing with people who dont seem to know how to read sometimes-

the lawyers at the BVA read real good- I love the way they assess claims.

It is just that it takes so long for them to make a decision and if the claimant has a prejudicial error -like the RO failed to send them the proper VCAA letter- then that only sets up a remand back to the RO for more VA crapola.

Too many vets have died -even since the VCAA became law- waiting on remands that the ROs caused in the first place.

Please keep us all informed of what the VA is doing next with your claim.

Maybe some at your RO they went to night school and took Reading 101 and are really assessing what you said in your appeal.

Edited by Berta
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Berta - speaking of the remand merry-go-round -- Have your ever heard of something like this - a vet knows that the VARO is simply incomptent. So during the BVA hearing the vet asks that the BVA accept a new statement from him which he forfiets any and all previous rights not afforded to him by the RO (VCAA and other due process rights)? This would be done just to keep the BVA from remanding due to no VCAA etc..... Just wondering.

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I think you mean can a vet mitigate the damage of a prejudicial VCAA letter? Yes-

That is what I did-

As soon as I was transferred to the BVA I wrote them a letter

(first I asked my POA for support but they refused)

and I asked the Board for immediate remand due to the prejudial error of my VCAA letter,also due to the fact that my IMOs of Nov has well as all of my other medical evidence had been consistently ignored, and then

just in case that was not enough for mitigation- I enclosed an additional 2,000 buck additional medical opinion and ended the letter stating I do claims counseling as a volunteer and I know my rights.

I got the remand in weeks.

A vet can mitigate the damage of a prejudicial VCAA letter -BUT how many vets even know they got one that is illegal?

This is the basis of my proposed amendment to the VCAA that Cong Filner said he would consider. I will be talking to Congressman Filner next week on that.

These vet reps know what a VCAA letter should be- they get a copy of the same one the RO sends the vet.

In my opinion when some of these reps see an illegal letter they know this will get the claim in limbo for years and they never question it or tell the vet how to overcome it.

At the BVA web site you can see claims where the BVA saw that the vet did not get their proper VCAA rights- but in some cases the vet's evidence overcame that error (mitigated it)

and the evidence was enough to prevent a remand and the BVA made a decision.

THOUSANDS of other vets however got remanded back to the same RO that had violated the VCAA in the first place- setting up one more long and unnecessary wait for a proper decision.

I had a feeling that it was the election notice under the VCAA that triggered the VA to move on the claim-based on how the vet checked off the boxes on it-

a rep at the VA confirmed this 2 weeks ago to me-

So it seems to me that they consider -by not having a signed and checked off receipt of the election notice that the vet returns to the RO-as the vet's inability to be able to pursue the claim.The claim goes to the bottom of the pile.

But a vet or a widow cannot reply to an election notice that they never receive.

This is why my claim has been in the system for 4 1/2 years so far-

and my POAs tried to tell me my VCAA letter was legal and is wasn't.They put this in documentation to me.And also sent me statements that my IMO of 2004 had

been reviewed by VA medical personnel. There is absolitely no proof at all of that. Up until Oct 3rd,2007 I have reason to believe the VA has never even seen any of my medical evidence at all.

Vets have got to start filing complaints as I did-with the OGC if their reps ty to get them to believe their DTA rights have been extended to them by the ROs when they know full well a VCAA violation gets the claim out of their hair for years and they dont have to work on it.

Edited by Berta
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Thanks - I under your stance and point on mitigating the VCAA. However, I do not want a remand back to an incompentent VARO. Once my file has been transferred to the Board I just want them to simply make a decision Yes or No.

Now with my new claim I will watch very closley and read the VCAA word for word. If it ain't right then I will scream like a scared rabbit.

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