Nod

[free_spirit_etc]

I received my initial denial - dated November 8, 2007.

I submitted the evidence they requested in the VCAA letter in June 2008, prior to the end of the one year deadline to submit the requested evidence.

Though I have requested they readjudicate my claim based on my submission of evidence within the one year time-frame, they now deny receiving the evidence.

Though I still think I have the right to have my claim re-decided (and remain open) as I submitted the evidence requested in the VCAA notice within the time-frame (and have a signed certified mail receipt - plus a copy of the IRIS I sent to let them know I had sent it) - I filed a NOD.

I did receive a letter dated October 17, 2008 telling me they were working on my claim for Compensation.

The deadline to submit my NOD was November 8, 2008.

I mailed my NOD November 7, 2008, certified mail, return receipt requested. I also had the post office postmark the letter while I was there to assure the postmark was legible.

I sent an IRIS to the VA on November 8, letting them know I had sent my NOD by certified mail, the receipt number, a copy of the online tracking showing it had been processed at the post office - along with a request to receive a date stamped copy for my records.

The response told me they could not send me a date stamped copy, but that I would receive a response.

I received a decision today telling me my NOD was not timely, as a decision was made on my claim November 8, 2007, my NOD was not received by them until November 12, 2008. (The day after Veteran's Day).

(It also said they attached information on how to appeal - but they didn't attach anything..)

I keep reading on the BVA sites:

http://www.va.gov/vetapp08/files4/0826555.txt

"When these rules require that any written document be filed

within a specified period of time, a response postmarked

prior to expiration of the applicable time limit will be

accepted as having been timely filed. In the event that the

postmark is not of record, the postmark date will be presumed

to be five days prior to the date of receipt of the document

by VA. In calculating this five day period, Saturdays,

Sundays, and legal holidays will be excluded. 38 C.F.R. §

20.305(a).

In computing the time limit for filing a written document,

the first day of the specified period will be excluded and

the last day included. Where the time limit would expire on

a Saturday, Sunday, or legal holiday, the next succeeding

workday will be included in the computation. 38 C.F.R. §

20.305(;)."

Do they have any justifiable reason to dismiss my NOD as untimely? Aside from the fact that I have evidence that I SENT it on November 7, 2008... And that I let them know IN WRITING by IRIS ON November 8 (the deadline) that I was filing a disagreement --- shouldn't the five day presumption apply?

(The 8th was a Saturday, the 9th was a Sunday, the 11th was a holiday. According to the above procedure for calculating the mailing date - the presumed mailing date should be November 4, 2008). So even if they manage to lose my postmarked envelope -- shouldn't their acknowledgement of receiving it on November 12th count as evidence of timely filing?

I am not quite sure why they didn't go by the date of the postmark, or use the five day presumption when they issued the decision to dismiss my appeal, except that they are the VA and that's what they do...

Am I missing something?

Free

[Josephine]

Hi Free,

I am so happy to hear from you and hope you and your son are doing well.

I will leave the answer to your question to the experts.

Always,

Betty

[rentalguy1]

You've been shredderized! You need to follow these directions:

6. How do I submit a request for consideration under these special procedures?

If you submitted an application or other supporting evidence between April 14, 2007 and October 14, 2008, and you believe VA does not have the document, you should submit a request for consideration under VA's Special Claims Handling Procedures for Missing Documents. Your request should be made in writing and sent to your local regional office or through your veterans service officer.

Your request should include the date the document was originally submitted to VA. To support your statement, please include copies of any of the missing documents, if available, such as a copy of your application form, a dated transmittal or cover sheet from your veterans service officer, or confirmation from the mail deliverer.

VA public contact representatives are available to assist anyone desiring to file a claim under the Special Claims Handling Procedures for Missing Documents. You may call our toll-free telephone line (1-800-827-1000) or visit any of VA's regional offices for assistance.

[poolguy11550]

freespirit, send anther cert. mail letter to the RO stating that the VBA had all the evidence & NOD requested before the appeal deadline and that you ask for special reconsideration- referance VA fast letter 10-41. Then wait for reply. You got your proof and now the evidnece is stacked in your favor very heavily.

[john999]

If you are close enough to the VARO hand deliver your evidence to them and get date stamped copies. I don't trust them to find their ass with both hands.

[free_spirit_etc]

Thanks to all for your responses - and the info on the special consideration for the missing documents.

I will certainly follow up on that!!

As far as the NOD deadline goes - I, of course, will file an NOD about the VA's failure to accept my NOD mailed before the dealine as timely.

Am I on solid ground to ask them to CUE their own decision on the timeliness of my appeal - as it was clearly in error? I was hoping that could cut through some of the BS time. Or do I have to follow the NOD on my NOD all the way through the maze before I can ask them to consider it a CUE.

Thanks!

Free

PS. Betty - what a beautiful and inspiring PM you sent!! ;)

Still loving my vet VERY VERY much!!!!!

[cowgirl]

Free, nice to see you and yes, do 'show' the proof you have, use the fast letter, use the regulations and yeehaw, dont give up! You deserve so much more than whats 'by law', but least 'you' can see the facts clearly, the VA will eventually see it too. Heres hoping they will consider a CUE on themself.

God Bless~!

Cg'still steppin up!

Edited December 4, 2008 by cowgirl