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

[poolguy11550]

The whole point to the fast letter approach was to get a better qualified pair of eyes looking into the claim and putting the NOD into correct area for further adjudication- the appeals teams. You could dance around for a year with the pre-development personal before someone could set down and realize what to do.

[broncovet]

Unfortunately, this system is set up so that the wolf guards the hen house. When you send a NOD to

the Regional Office, they can simply disregard it entirely, like they did mine. When I finally got so mad that the Cleveland Regional Office failed to take action on my NOD that I filed a Writ of Mandamus, the Regional Office responded that my NOD was "interpreted as a claim for benefits".

The Regional Office has no accountability..how do you think they got away with shredding these documents all these years?

The Regional Office "interprets" regulations in a manner consistent with their own agenda. That is, if they just plain dont like you, then they "interpret" the regulations in a manner unfavorable to the Veteran.

Remember the regulation "favor the Veteran"? They interpret this one as "forget the Veteran", and, unfortunately, we cant do anything about it except send a NOD to the Regional Office which winds up in the "We dont have any record of your NOD" file. As mentioned, whenever the wolf guards the hen house, you have a conflict of interest.

[poolguy11550]

broncovet, if no legal advocates can get involved until the "NOD stage"- it does make one wonder why the VBA often fails to see NOD's when they first come in. I fully believe that lawyers must be a part of the claims process at the very start of the claim, should the veteran choose so. In responce the VBA might actully place personal that can interpit an NOD from other issues or foward the folder to the appeals section. Basiclly what you have now is mall room staff doing the same, but with the outragous results.

[broncovet]

I agree, poolguy. For the VA to suggest that Veterans dont need representation, is like Hitler saying that Jews dont need any human rights inspections in his concentration camps. The trouble is that most Veterans can not afford a lawyer, and, of course, the VA takes full advantage of that fact.

It is sad that we should have a need for a lawyer in obtaining our benefits. These benefits SHOULD be given to the Veteran without a lawyer, however, that is often not the case. Right now, the system favors the Veteran who is connected well enough to obtain a "pro bono" attorney. There is also a "luck of the draw", too. If a Veteran is lucky enough to have "drawn" a Rating Specialist who is fair, and a Regional Office that is fair, they are much more likely to obtain benefits. However, many of the rating specialists are downright stingy. I would love to see the "tables turned" and the Rating Specialists paychecks determined by Veterans they have served. I wonder how many "lost NOD's" we would have if the Regional Office bigshots bonuses were adversely affected by each "lost NOD"?

[Berta]

Free- go to the VA Watchdog site (or maybe it is here too- it should be- and read over the VA Fast letter regarding the Special Procedures involving the October Incident (a nice VA spin on shreddergate)

Read over the advise Jim Strickland gives vets- if you sent anything in timely and they ignored it or said they didnt get it-

the VA now has to cough up the goods-

I am preparing a letter based on the fast letter myself- regarding my CUE claims- bascally the power we now have is this-

if the VA says they didnt get something-

or they dont list our evidence in the SOC-

we can suggest strongly that they destroyed it-

but in most cases we still need proof that they should have gotten it-

I sent an Iris about 10 days ago and said I was usng the fast letter to prepare an argument as to why they denied my CUE claims and ignored my legal evidence- all of it-so the evidence I sent must have been put into the crapper (shredder)

I have received 3 (or maybe 4 got another one today) responses as to the VARO needing to have more info from me to straighten it all out-

they are on the hot seat on this-

vets and widows have to call them on this however- read what Jim suggests- I am sorry I dont have a template to use-

but will in a few days- I have been too sick to think about it-

and went blank every time I tried to use the VA FAst letter to my advantage on my CUEs.

I am feeling better however and getting the ducks in a row- with armament and warfare materiale.

The Shreddergate fiasco is -in my opinion- one of the BEST things to happen yet to vets-

finally what we said for years has been proven true.

VA has been destroying our stuff- they only destroy the good stuff however and leave the negative C & Ps in the C file-

if it isnt destroyed I guess they stuffed it in a drawer-I heard under the RO 'amnesty program' 700 pieces of documentation were exposed that VA employees were hiding- so they didnt have to work the claims.

This crap is going to stop now.

If SSA did this to disabled people the whole country would be in an uproar-

how did all you honorable men and women become second class citizens with the VA anyhow- what a disgrace-

we have to Prove everything while they S--T can our good stuff.

Bull crap.

[Ricky]

The whole point to the fast letter approach was to get a better qualified pair of eyes looking into the claim and putting the NOD into correct area for further adjudication- the appeals teams. You could dance around for a year with the pre-development personal before someone could set down and realize what to do.

The reason for my hounding was the post indicated that the RO acknowledged the receipt of the NOD so they have it and the fast letter does not apply - they are simply claiming it was not timely filed.

Now the post did mention some evidence sent during the one year period that the VA said they did not get. Yep the fast letter will fit in here.

However, If the fast letter approach is used based upon the non-receipt of the evidence (as the nod was received), based upon how many requests for review are received by the VA it could take two years for Free's file to be reviewed. Now when reviewed what if they say still denied cause the evidence just was not enough to grant. Then you are back to the same issue of having to prove the NOD was timely, which will be no problem. Then you are looking at another 18 - 24 months of waiting on a DRO review. Therefore, what you have done to yourself by waiving this fast letter is added about two years to the informal appeals process. Just something to think about.

The fast letter is something to whip out quickly if you are sitting around waiting on your DRO review that has just begun or if you were just recently denied in an original decision and do not wish to get wrapped up in the appeals process unnecessarily. Hope my thought makes sense.