In Dro Process, Do I Need To File Form 9 Even Though No Soc Within The Year

[71M10]

Decision authored May 31, 2007

NOD filed August 2007

File in with DRO, have additional C&P physical next week.

Do I have to file a form 9 prior to May 31, 2008 or do I wait for a SOC which I then would have 30 days to respond to?

I am thinking I need to file a form 9 even though VA has not sent me one.

I Just want to make sure I don't drop the ball.

Best regards,

Tyler

Edited April 15, 2008 by 71M10

[Ricky]

I respect Ricky and Mobie16r. But I, once again, have to beg to differ. The information I provided came straight from the va.gov website. Since it is a pdf file I was not able to copy and paste. But here is the link that you can go to yourself http://www.va.gov/vbs/bva/010202A.pdf

It will provide you with the step by step process and it clearly states whether you have received an SOC or not you have one year from the date of your decision to file your form 9.

I filed my Form 9 before VA responded to my NOD because I was almost at the one year mark. The month "after" I filed my Form 9 I received the SOC. It's your claim...

Luvhim - thanks for the respect for I don't get much of that lately The law now requires the VA to issue a SOC to the veteran prior to the commencment of any formal appeal process so they in turn require the veteran to begin the process by telling the VARO that they disagree with the rating at hand. So a Notice of Disagreement is required to begin all appeals This prompts the receipt by the veteran of an election form asking the veteran if they desire a DRO review or the traditional process. If you select the traditional process then the VA will immediately issued a SOC without any further review by the regional office. You will then have 60 days to submit your form 9. If you select the DRO process no SOC will be issued until that review is completed. If the DRO cannot give a grant of the full award sought then they will issue a SOC to the veteran which can be used to continue the formalized appeal.

You now have one year from the date of the decision to file your NOD. So a veteran can wait to submit his NOD during the 11th month following the decision and then simply wait for the process to work - the election form, DRO review and then receipt of the SOC.

The wording in the pam is misunderstood by many. For it is almost as you say. Don't forget the OR 60 days after the receipt of a SOC. You are right it is your claim so do as you please. However, you have to be careful with the regional offices. You could confuse them by taking such action. As an example you could have your DRO review in line and submit your form 9. Upon receipt of your form 9,the regional office becomes confused pulls your file out of line and sends your a letter asking for you to clairfy your intent. Or even worse, you have waited for your DRO review for the past 12 months. Two weeks before it begans in comes your form 9 and it matches up with your file. The DRO grabs your file, sees the form 9, whoops out a SOC cause he/she thinks you have changed your mind about the DRO review, evident by your submission of the form 9 and then down that bumpy road of confusion you go.

So As I stated yes it is your claim, however, beaware of the laws that govern VA actions. The process is NOD followed by SOC then before the end of 60 days after the SOC a form 9 is submitted.

Edited April 18, 2008 by Ricky

[luvHIM]

Ricky, I do stand corrected. I did not experience what is "law." In fact, my first POA bailed out after the VA denied my claim. They did not even tell me what to do next. I had to dig for the information on my own and filed my NOD in the nick of time.

Well, I never got my DRO hearing or anything. I only had a month before my year was up after my NOD was filed (this was after VA acknowledged receipt of my NOD). At any rate, I was doing this on my own. I didn'thave a POA. Then I decided I better get some assistance. I called DAV and explained that my other POA had bailed out on me. They agreed to take over.

Well, I get a letter from my newly assigned NSO stating that I needed to send in my Form 9. I had not received an SOC, at the time. I sent in the Form 9 and received the SOC the next month.

I hear what you're saying and most definitely agree that no one wants to get caught up in the VA's game of manipulation and denial tactics on technicalities.

I guess I was just responding from my experience; but should have actually stayed out of it. I'm glad Tyler has decided to do what you've suggested. I admit it, I'm still learning. Thanks.

[Pete53]

Form 9 has to be filed within one year of the VARO Decision. Just cause a DRO is looking at it does not extend the deadline.

File the Form 9 now. Be precise as to what you want and what you object to in the decision.

I may be wrong but its safe at least.

[Ricky]

Form 9 has to be filed within one year of the VARO Decision. Just cause a DRO is looking at it does not extend the deadline.

File the Form 9 now. Be precise as to what you want and what you object to in the decision.

I may be wrong but its safe at least.

Hmmm..... Jez, looks like my previous post even confused an Elder. Let me try to explain prior to taking my meds. THIS IS ONLY MY INTERPERTATION OF THIS LAW AND IS IN NO WAY INTENTED TO BE LEGAL ADVICE. I AIN'T NO ATTORNEY, HECK I JUST BARELY CAN SPELL ATTORNEY.

FACTS ACCORDING TO RICKY's RESEARCH:

-Title 38 U.S.C. and the Court provide that the appeals process is a two step process for the veteran. First a NOD must be filed within one year of the date of receipt of the issuance of the rating decision being appeal. This followed by the issuance of a SOC at which point the veteran must submit his Substantive Appeal (form 9).

-Both of the above provide that a veteran must be provided a SOC before being required to file a Substantive Appeal (form 9).

-The Substantive Appeal (form 9) must be filed within one year from the date of the decision OR within 60 days, which ever is later.

Now lets look at the wording again and let me see if I can be clearer on my opinion tonight:

A long, long time ago when the VA was fast and efficient or they could actually make people believe they were, the first part of this wording was very important to the veteran (within one year from the date of the decision). Back in those days the VA touted that they could complete a appeal and issue the SOC within 4-6 weeks from receipt of the NOD. Now if they could do this, that would mean that when a veteran received a rating decision he/she did not like and immediately submitted the NOD, they would have a SOC within less than two months. Now if he already had one year to send in the NOD that would mean he would lose 8-10 months of the alloted time (if required to submit it within 60 days of the SOC) he was given in the first place to even begin his appeal process. So the first part of the wording was very, very important to the veteran. This made it possible for him to get his SOC and still NOT have to submit his Substantive appeal for another 8 - 10 months. This is/was simply a built in protection.

Now fast forward a bit. As we all know your claim can sit at the VARO for almost three years before you get a SOC and take off to the BVA. Therefore, the second part of the wording is very important to all of us these days (OR within 60 days, which ever is later). What this does is simply allow the veteran the alloted 1 year to file his NOD (same as long, long ago) and not have to worry about the substantive appeal until he/she has receive the mandated SOC (same as above, it just takes longer today).

So in summary a veteran has one year to get his appeal rolling. If he does so two months after his decision and the VA gets a SOC out to him, lets say the next two months, he still has the remainder of the one year period to file his substantive appeal (this is law).

If a veteran gets his decision, sends in his NOD, lets say 8 months later, and the VA takes no action until 2 years later, the veteran still has 60 days to continue his appeal by submitting his form 9 (this is law).

You MUST per law and the court receive a SOC prior to being required to submit a form 9 - no way around it. The court has ruled in favor of all cases involving the none issuance of a SOC by saying that such an action, per law, leaves the claim in a pending status. Now you will see some where the veteran claimed the dog ate the mail, the mad neighbor took the mail from the box and burnt it etc..... but in all cases where the veteran proved non-receipt of a SOC, no matter the length of time since the original decision, the court ruled that the claim was still in a pending/unresolved status.

This law and the implementation of it by CFR 38 is confusing as is all federal law. So if you do not trust or believe what I have provided get you a good SO if you can find one, if not grab you an attorney versed in federal law, especially 38 USC and 38 CFR which implements the USC and let them explain it to you.

This is not legal advice for I am not an attorney nor should it be construed to be legal advice. As stated before, IT IS YOUR CLAIM so for legal definitions or interpertations of this or any law you must be the judge. Do what you feel is best in your situation, go it alone, grab an attorney, SO etc...... All of this is simply my interpertation of this issue. I ain't got no money so don't sue me!!!!! Simply disregard my post and go on with life for it appears that 99.3/4's of you here truly do know what you are doing for you have been successful in your claims process. Oh yes, by the way did I mention I AIN'T NO ATTORNEY!!! I am just a poor ole veteran guy who spends his nights reading and studing the laws that affect veterans.

Hope this helps you guys!