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

[Mcafee]

Rental Guy does this not provide them with the information to use against you ? 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.

especially if you have all that is missing or clearly show that they did destroy records. Once Again I see there is no Accountability.This still lets them off the hook.

[poolguy11550]

Free, don't make it more complicated than it is. The fast letter is all that you need to do. An NOD 4 a NOD and a FL 10-40 request may be mistaken for something else and circulate for months until the right person reads your info and forwards it to the right desk.

[jbasser]

Free, I want to urge you to do exactly to the T what Poolguy tells you to do.

In the movie field of dreams, Costner heard build it and he will come.

J

[free_spirit_etc]

Thanks!

Can I ask what a FL 10-40 request is?

I certainly want to do the fast letter. But I also don't want to lose any right I have to appeal.

Do I have one-year from the date of them saying my NOD was not timely filed to appeal that decision?

Free

[poolguy11550]

Free, sorry that was VA fast letter 08-41. Basically, if you submitted anything to the VBA between April 14th 2007 and October 14th 2008- you may be entitled to a special consideration if you think that any of your documents submitted during that time were/are missing. State the date that you think you submitted your documents. As we know, you know and have proof of the time that you filed the NOD.

Most likely the VSR messed this up. Althought, it happens alot. Set back and wait, your c-file will most likely be read very carefully by a knowlegdeable senior VBA employee. My guess is that weather your NOD is in your file (most likely) or not, that the RO will go ahead start the appeal process for you.

[Ricky]

Thanks!

Can I ask what a FL 10-40 request is?

I certainly want to do the fast letter. But I also don't want to lose any right I have to appeal.

Do I have one-year from the date of them saying my NOD was not timely filed to appeal that decision?

Free

Free - as I see it the fast letter will do you no good at this point FOR YOU MUST INSURE YOUR NOD IS ACCEPTED. Then you can worry about them shredding evidence..... for the VA response to all of this is that even if evidence was lost/thrown away you still missed your date to file a timely NOD for all veterans know that once a decision has been rendered you have one year to file the NOD and no matter how much evidence you have submitted for reconsideration NOTHING stops the clock!!!!!!Scandals, fast letters, terrorist attacks NOTHING stops a VA time limit clock.

Not to beat you up (not too badly anyway) but we have posted over and over again on Hadit that you must watch your time lines no matter what else you may have stirring in the pot with VA. So your actions are going to cost you some time in the already red tape VA process.

What has happened to your NOD is it was reviewed by an uneducated rater. You are going to have to write them a letter and spell out the fact that the submission of your NOD is covered by the rules of 38 CFR 20.305(a). Spell it out like you were trying to convince my 3 yo granddaughter - My NOD was postmarked on x day which must be accepted as timely filed under 20.305(a). However, if the postmarked evidence (the envelope) is no longer available then you must apply the general rules provided by 20.305(a) in that the VARO has acknowledged that they received my NOD on x day. Using the general rules under 20.305(a) the VARO must assume that my NOD was postmarked 5 days prior to the date of receipt by the VARO excluding weekends and holidays. Since Nov x was a holiday and Nov x and x were weekend days, applying the general rules of 20.305(a) then my NOD would have been postmarked xxxx. As such my NOD was filed well within the time limit required by the VA and therefore, must be assumed to be filed timely....... etc........

Don't forget - your first priority must be to get them to accept you NOD!!!!! Then you can fight with them over lost or destroyed evidence if you have the time to get wrapped up in more red tape.

Just my 10 cents worth.