Va Claims They Didn't Get My Appeal

[jecsb4]

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.

[Berta]

"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.

[Berta]

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.

[jecsb4]

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

I do have a stanped copy for the proof.

[Angela]

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?

[Ricky]

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 October 14, 2007 by Ricky

[Berta]

"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( (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)."