Any Thoughts On This Odd

[Berta]

As I mentioned before my POA has a short period of time left to respond to charges I filed against them with the OGC.

There was the illegal revocation of my POA and other charges that I put into a time line with exhibits to prove.

One charge was that the POA failed to present my initial Imos to the DRO although minutes before this confernce we discussed not only that he would do that ,we discussed considerable other evidence pertaining to my claim that the VA had ignored in a sameo sameo De novo review.

The conference was set up by the VSM because I asked her to CUE the sameo sameo so called de novo review.

The rep (due to screw up between this local POA and his office)took the IMO from my C file before the conference. He told me he was sure he would walk out of the conference with an award.

He also told me to send him as well as the local rep copies of everything I had ( that all has been destroyed- not "maintained" was how he put it)

I responded to the SSOC this conference produced that again failed to consider the Medical evidence and my IMos, attaching the Imos again to the response.Nothing I discussed with the vet rep nor my IMos or anything else was brought up-in a "lengthy" conference- I dont know what they talked about.The SSOC itself is my evidence that the rep failed to do what he was supposed to do.

Within days of receipt of that response however the VSM had a conference herself with someone from my POA (maybe this same rep)and they decided to use my response as a formal I-9 and immediately (I didnt find this out for 6 more months)started the transfer process to the BVA.

I had 60 days to file the formal I-9 and mailed it,a few weeks after sending the response to the SSOC, returning to find in my mailbox the odd letter about my SSOC response being used as my appeal.

I got a remand right away-

and had even discussed my I-9 with Ron Abrams, attorney for NVLSP and he was glad I had posted at hadit what he recommends putting on this important form. It is under the search feature.

He also -in another conversation -told me I took the right steps in getting the fast remand.He was so right there.My POA refused to help me with it or support it.They were shicvked when I got it and then filed a 4138 so it would look like they got it for me-one rep told people at the RO he himself got a client a fast remand meaning me.Not true at all.

Question

Isnt it highly unusual for the VA (the VSM and someone from my POA agreed to this)to accept a SSOC response as a formal I-9?

Particularly when the VA itself determines the time limit for an I-9?

I asked the VSM today to respond in writing telling me the regulation she used to do this.

I sent the BVA the I-9 myself and they remanded in a few weeks and I chalked this incident up at the time to one more bizarre thing that happened between my POA and the VA regarding my claim-

(such as within days after the remand a rep from NYSDVA told me he heard the VA was getting another VA opinion- the files were still in the mailroom and nothing from VA yet has indicated that in almost 2 years. The VA doesnt work that fast.They havent done a thing with my remanded claim at all- 2 years in September.)

I think those dopes thought they could revoke my POA because I had sent a SSOC response in -never considering that the formal I-9 was sent in within a few weeks of the SSOC decision.

And the rep who revoked didnt even know that someone (maybe him) had agreed to use the SSOC as the I-9 with the VSM.(documented from the VSM herself in a letter to me)

My I-9 was filed properly and on time.I have no concern about that (unless that was mysteriously removed from my C file-)

The POA just found out that I had checked my I-9 with Ron Abrams of NVLSP-and it complied fully with the regs as well as Ron's suggestions in the VBM.

Is there some reg I never heard of that would allow the VA to use something other than an I-9 for an appeal?

I felt if I had let that go as the VSM and rep agreed to-and had not filed the formal I-9-

the BVA could have legally said years down the road that the SSOC response was completely unacceptable as a formal appeal.

Has anyone here ever sent in evidence that was ignored in a SSOC only to find that-although they have plenty of time to file the I-9 on the decision-the VA tried to turn their response into the formal I-9?

The more I look into my situation -the more it appears that NYSDVA and the RO agreed to do what seems against proper established VA case law.

If I had not sent the BVA my I-9 myself to request the remand- I could have found myself with a denial at the BVA solely due to not sending in a formal I-9.

Any comments?

I have seen appeals rejected by the BVA because they were not in a specific I-9 format.

Or the I-9 was not timely.

Would any of you believe that this idea of the VSm and my POA would have been an acceotable I-9 to the BVA?

Edited June 25, 2008 by Berta

[jbasser]

Berta, They are going to have to send you a Statement of Case in reply to your form 9. ( Substantial Appeal)

They should list the exhibits as whatever evidence they have in their posession.

You can pick on the list as you see fit.

Now for the tricky part, Once they see they are going to have a remand or that the claimant is actually correct int he claim data, I expect them to about face and reconsider the claim without going through the appeal process. It took mine about a year from the form 9 to the actual decision, I never made it ot the BVA.

As far as your POA, I consider them nothing but glory grabbers. Your claim goes as a success on their books also regardless of the effort they put into your claim. I remember you fired one last year. Did you elect a new one or is the Same Poa still trying to assist you?.

[Ricky]

Berta - they probably never reviewed the file to see the filed formal 9. They just assumed that the reply contained all of the elements needed to satisfy the requirements of the board for a formal form 9 and the dim light bulb went off in their heads - lets help this lady out. Never knowing that what they were doing was a very big blunder due to the fact you had already submitted your form 9. Idiots, just plain idiots.

To answer your question the m-21 as provided below allows them to do this if the correspondence meets all of the requirements listed. I have found that if you write very well in a logical and legal manner them you can write one document which can be used for just about anything within the VA system.

Edited June 26, 2008 by Ricky

[Berta]

Thanks all for the replies here-

need time to digest them all-

The very first rep who saw my claim said it would go the BVA and the CAVC because the VA would not comprehend it.

The VA -however-certainly comprehends it-

He then seemed unwilling to tell me if my POA was still active ( it was-I had POA with them for many years prior)

then he asked me if I would help him with some of his claims-

it seemed only when I agreed to-did he say the POA was still in full force.

He kept no paper trail on me or my claims for over 2 1/2 years.

Only when I raised hell about a copy and paste denovo did his boss-at the RO level-know they continued to rep me-

and his boss got my AO claim in a heartbeat and thought the IMO would generate an award right away.

Then the IMO disappeared and has never been addressed by the DRO or the VA-

Only when I got down the whole timeline on paper for the OFC did I fully realise how the initial rep screwed up and the screw ups continued-

as long as my claim went to the BVA I guess they figured I could die during the BVA process-but this is ultimately a Nehmer claim- the dopes didnt know my daughter can continue it-Nehmer Court Order and Stipulation for next of kin of class action members (which could be the surviving spouse of the AO veteran)

Nehmer is not like other claims-

what I dont get is that responses to SSOCs in the past awarded those claims to me.

When you send in an I-9 the VA has a I-9 Certification worksheet.

Certain requirements have to be met and the VA verifies that they were.

Years ago the VA had my I-9 and my responses to SSOCs that knocked down their "experts".But I won at the RO level.

J Basser wrote-

"I remember you fired one last year. Did you elect a new one or is the Same Poa still trying to assist you?."

The sole rep that started to help me retired last year.

The POA revoked my POA illegally ( even the OGC agreed to that right away)

This could have set up a long remand if the claim went to the BVA again- as the BVA must clearly know who is or isnt the POA.

They failed to send me and the BVA a Motion of Good cause-

this is required if a POA revokes anyones POA if a 646 form has been filed.

The OGC lawyer told me that even if I revoke the POA myself -they will still have to answer to my complaint.

I wont-I told the OGC I must suffer from an illusion because I believe this state org must employ some competent reps and I wont revoke unless I find they dont employ any competent ones-

and this would be something the tax payers in NY(and those who are in Harm's way paying state taxes as NY residents-

should know.

Thank you all- will go over these replies very carefully here-

A Substantive appeal is defined in this BVA decision:

"The Board shall not entertain an application for review on

appeal unless it conforms to the law. 38 U.S.C.A. § 7108.

Under VA regulations, an appeal consists of a timely filed

notice of disagreement (NOD), and, after an SOC is furnished,

a timely filed substantive appeal. 38 U.S.C.A. § 7105 (West

2002); 38 C.F.R. § 20.200 (2006).

A substantive appeal consists of a properly completed VA Form

9, "Appeal to Board of Veterans' Appeals" or correspondence

containing the necessary information. The Substantive Appeal

should set out specific arguments relating to errors of fact

or law made by the agency of original jurisdiction in

reaching the determination being appealed. Proper completion

and filing of a substantive appeal are the last actions a

veteran needs to take to perfect an appeal. 38 C.F.R. §

20.202. A substantive appeal must be filed within 60 days

from the date that the agency of original jurisdiction mails

the SOC to the veteran or within the remainder of the one-

year period from the date of mailing of the notification of

the determination being appealed, whichever comes later. 38

U.S.C.A. § 7105; 38 C.F.R. § 20.302(B). If a claimant fails

to file a substantive appeal in a timely manner, and fails to

timely request an extension of time, he is statutorily barred

from appealing the RO decision. Roy v. Brown, 5 Vet. App.

554, 556 (1993)."

There is some leeway there on accepting a SSOC response as a formal appeal-

Still- I had 60 days (and even had a year as described above) to file the I-9

so one would think that the VSM and the rep -who both agreed to accept the SSOC response-would allow me the remainder of the 60 days-at least- to file the I-9.

I filed the I-9 within the 60 days.It looked to me that since the conference the VSM set up was screwed up and she knew it (the purpose of my SSOC response)she might have confirmed with the same vet rep who screwed up the conference (or the DRO did) and to get it all out of their hair they agreed to accept the response to the SSOC and not wait for the I-9 just to get the claim to the BVA-

it didnt work.

The RO has spent more time trying to deal with screw ups on my claim then actually looking at my medical evidence.

I cannot reveal the evidence I have to support my complaint with the OGC.

Once I gathered it all together I was astonished myself-

it looks like a bunch of men who acted like they were gods were pushing around some helpless widow-and documenting what they did for some reason-and passing around the emails(FWDS) they were sending to me-as a joke.

never dreaming that they had actually documented how deficient their POA advise and representation was.

[Berta]

TSSnave -I will email you- I think you hit the nail on the head-

[free_spirit_etc]

Berta,

I remember reading a few BVA cases on appeals where the RO had taken the NOD to be the "formal" appeal - but then the BVA remands to the RO to see what the RO considered to be the NOD - or if the NOD had ever been filed.

Seems like a game to me. If the VET files an NOD - and the RO takes it to be an I-9 of sorts - and thus, passes the appeal up - I can't see how the vet can be penalized for not filing what the VA didn't even know was needed.

I know things I have read say the I-9 does NOT have to be on the actual form - but has to have the same information.

But again - it seems like a game if the RO misconstrues what was actually sent and then the BVA remands it back to the RO to see if the person had actually filed what they were supposed to.

I know you DID file the I-9 ALSO. But maybe the RO was trying to throw the claim off - or tie it up - with the "what did she really file?" game.

Free

[Berta]

In some cases the VA can accept a NOD or appeal that does not conform to the regs-

but who would take the chance on doing that if they in fact know what the regs involve-

Even if the VARO accepts something, the BVA could question it-

This all involved the second meeting with my vet rep-and an agreement the VSM made with him-

If a claimant has 60 days in which to file the formal I-9 -how many vets are having other documents they sent to the RO accepted as the formal I-9-in lieu of it?

Why even bother to send the I-9 out at all?

What I see here is that the RO and the rep couldnt wait to get me out of their hair-

if the VA isnt going to allow us the 60 day period-in which to file a formal I-9- which they themselves send to us to file-what good is that?

Now I think the rep who revoked my POA saw the SSOC response instead of the I-9 and this is the reason he will tell the OGC that he revoked me.The OGC however has the whole story.

I discussed my I-9 with Ron Abrams NVLSP before I prepared it due to his specific advise on preparing them in the VBM.

I had also posted this info here at hadit and Ron was very glad that NVLSP's advise was shared on this web site.They advise adding a condition to the I-9 form-"preserve for all errors etc"

I was prevented from being given the full 60 days to prepare a formal I-9 in complaince with what NVLSP suggests.(although I did)

NVLSP trains most vet reps initially- and they trained my POA reps however not one of the reps at the local office even opened the VBMs I donated to them over the years- if they had done that-

they would not have agreed with the VSM to accept a SSOC response as my formal I-9.

You are correct Free spirit- in what you stated- but I sure dont think any of us should ever expect the RO to accept something that does not technically comply with the regs on appeals-

down the road -at the BVA- it could backfire.Those types of situations are at the BVA web site too.

The VA does not want to read my medical evidence-that is the crux of this whole problem-

I went thru over 3 years of this in the past-

I sent my medical evidence to Sec Deputy Mansfield last month-(there was specific reason I chose him) -he submitted it himself to the VA.

You raise good points- but when the VA itself sends a vet or widow an I-9 form there is no reason to accept anything else in lieu of an I-9 -when the claimant has time left to send it back to the RO.

I could see this being done in case of an infirm or hospitalized vet who could not comply with the I-9 in time due to illness-but somehow had sent something that the RO could use in place of a formal I-9- still I dont see the VA making that exception-

The usual rule is No I-9- no appeal is in progress at all. The claim is over.

Actually I think I had a year for the I-9,but sent it back in a few weeks-prior to the 60 day deadline-

I havent gotten in touch with NVLSP as to how the VARO wanted to accept my response to an SSOC-as a formal I-9

I think I should give Ron a call on this-as soon as I get a written response from the VSM on why she agreed to do this with my POA.

I have dealt with NVLSP since 1991. They want to know what problems advocates see in the claims process.

Since they train most reps anyhow- they also want to know if reps themselves are circumventing our rights as claimants.

It IS a game.Some of our POAs are helping the VA play the game.

Edited June 27, 2008 by Berta