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????

[betrayed]

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.

I dont consider it a NOD I consider it to meet the requirements of a NOD

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.

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 supersede my request for a hearing with a DRO which is currently pending.

I sent in the form 9 with the above statement as well as why I think they made a mistake, I checked I do not want a BVA Hearing

What would you think if you received such a form 9? is it not ambiguous in its purpose?

LET ME CLARIFY I DO NOT HAVE A PENDING HEARING IN JAN 2007 WHEN I SENT THE ABOVE IN I DID HAVE A PENDING HEARING WHICH TOOK PLACE IN AUGUST OF 07 WITH THE RULING IN DECEMBER AND THE NOTIFICATION IN JAN 08

Edited January 16, 2008 by BETRAYED

[danang_1969]

On everything I have submitted lately, I write I do not wish to appeal this claim to the BVA until I have exhausted all avenues at the regional level. My thinking is, that if I am eventually required to go to the BVA, I would have a recourse to say, hey the RO has told me all means was exhausted at the regional level, so how can you remand it back. This is just a hunch, I have never seen any regs on it and don't know if there is any, just trying to think like a lawyer. I also know that the RO can solve the claim at the regional level and I think the regional people make every effort to get you shipped out to the BVA before all means has been exhausted. That's the reason so many claims get remanded back to regional. Bertha Pete, John, anyone do you think this might have some substance?

Danang_1969

[Ricky]

On everything I have submitted lately, I write I do not wish to appeal this claim to the BVA until I have exhausted all avenues at the regional level. My thinking is, that if I am eventually required to go to the BVA, I would have a recourse to say, hey the RO has told me all means was exhausted at the regional level, so how can you remand it back. This is just a hunch, I have never seen any regs on it and don't know if there is any, just trying to think like a lawyer. I also know that the RO can solve the claim at the regional level and I think the regional people make every effort to get you shipped out to the BVA before all means has been exhausted. That's the reason so many claims get remanded back to regional. Bertha Pete, John, anyone do you think this might have some substance?

Danang_1969

Danang - when the RO certifies your claim to the BVA they are certifying that all efforts have been exhausted. However, when it reaches the BVA and they do not think so they remand it. So while good in theory it will not work. The BVA has the authority to remand any claim they feel not ready to rate by them back to the RO.

[betrayed]

On everything I have submitted lately, I write I do not wish to appeal this claim to the BVA until I have exhausted all avenues at the regional level.

Danang_1969

That is exactly why I checked I dont want it to go to the BVA, but the form 9 has to be filed within one year of the denial letter. I truly believe in trying to solve crap at the lowest level which is usually the fastest way. I consider that in Jan 05 I submitted a claim for the first time and in may o7 I am retro to apr o6 @ 100% P&T, I get a hearing and then get my 100% P&T back dated another two years in DEC 07 to jun 04, everything I did and won was all done in 35 months and thats a hell of allot faster than getting denied once or twice and then waiting for a BVA Hearing. I did it myself with what I have read on hadit and other places, my VSO did nothing but accompany me to the hearing and pass along my submittals to the VA.

[betrayed]

Well I got it back in writing they are treating my form 9 as a NOD.

[Berta]

Good Jim- in this way- since this was filed AFTER June 21, 2007 as I recall and could be wrong-and they are calling it a NOD (the first avenue of attack) you could hire a lawyer if necessary-to handle this claim under the Attorney for vet regs.

They tried to call my SSOC response as a formal I-9 -I was so mad I whipped off an I-9 right prepared and discussed it with Ron Abrams at NVLSP-

I was angry because I had to prepare it in a hurry (although I had legally plenty of time for I-9) because I was NOT going to allow them to accept an improper I-9 that included the statements that Abrams and the lawyers of NVLSP said should be in the I-9.