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

[Pete53]

Berta:

I maintain that the info may be lost in the file as I get the impression that many who work for the VA as raters don't read the file entirely and thoroughly. When I was working many years ago the first thing I did when I got a file in my business was I would take it apart our files were 4 parts and make sure everything was in right order. You would be surprised how many times someone would make a copy and just put the paper on top. When I could not find something that was in the right pew I would look for it.

As I have said many times before I have been lucky as to date I believe that my file is complete but I have reviewed it several times . By the way when I got my first complete copy of my C File it was a mess, all there but a mess. Deadlines will kill you when you are not organized. People who wait to the last minute are probably not good raters. Course the VA has no real deadlines unless they have a Court Order.

Sorry for the rant.

[free_spirit_etc]

Thanks Ricky.

Yeah. I am in agreement that I have to make sure the NOD is granted. I cut it closer to the wire than I wanted to. I kept trying to get them to acknowledge my submission of evidence in June - and readjudicate my claim, instead of filing an NOD.

The regs say that if you send evidence within a year of them requesting it in the initial letter - they have to readjudicate your claim.

I was trying to SAVE time / steps.

My evidence was due in June 2008 - BUT they would not send me the C-file copies I had requested in early 2007. In MAY 2008 - I wrote to request an extension on the one-year deadline to submit evidence - since I was STILL waiting to be sent copies of the C-file. They sent the copies in late May and acted like I had JUST requested them....GRRRR.

So I sent another IRIS - asking once again for an extension - since I only had a couple weeks from receiving the C-file before my one-year ran out.

They responded that they were forwarding the requests to the raters, who would check the regulations and see if an extension could be granted.

Since I did not hear back from them by the time it was my deadline - I submitted the evidence I had - and again reminded them that:

1. I had requested an extension.

2. That I had not heard one way or another about the extension.

3. That I was submitting the evidence I had - but continued to request an extension, as I still had not been provided with a copy of the medical report that was used to deny my claim.

(*** I STILL haven't gotten that, despite repeated requests)

The IRIS included the certified mail receipt number of the evidence I submitted.

The response didn't address the evidence - but kept talking about the need to file an NOD - and we had several exchanges where I kept asking them to re-adjudicate my claim based on the evidence I submitted June 6 by cetified mail # xxxx.

I even pointed out - I realized I may have to file an NOD - but that I wanted the claim readjudicated, per the regulations - because I didn't want to file an NOD prematurely, wait - get all the way to the BVA - only to have it remanded BACK to the RO because they hadn't readjudicated my claim upon the receipt of the evidence within the one year period.

I didn't want to wait a few years just to be back to square one.

So instead of filing an NOD - I waited and tried to get them to readjudicate my claim - so that step would be DONE.

And this whole conversation started RIGHT AFTER I submitted the evidence. But they just ignored my requests to readjudicate - kept talking about how my claim required an NOD - BUT did NOT bother to MENTION that they had not received the evidence I sent by certified mail (that was signed for).

FINALLY, in October - when I asked them point blank about the evidence - they informed me they did not recieve it (and I guess somehow failed to mention that in all the IRIS discussions I had with them in the meantime about the evidence I had sent in June). They even informed me that their was NO advantage in sending anything by certified mail - and informed me to just use regular mail from now on.

ACK!!!!!!!!!!!!!!!!!!!!!

But then I got a letter telling me they were working on my claim for compensation. And I got a letter telling me they had processed my burial claim (which had previously been lost...several times).

So I am not sure if the letter was a mistake - or if they suddenly found the evidence I sent in June and were processing it.

I have an IRIS in to ask - but have not heard back.

So I went ahead and filed an NOD -- to beat the deadline for that (under their pretense that I did not send in evidence in June).

But yeah..I did cut it close. And I wanted to make sure I am on solid ground on the postmark rule before I pushed that point.

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.

[free_spirit_etc]

Thanks Berta! I hope you are feeling better!

I read some of the info on the sites you recommended - and plan to re-submit the evidence and request the special review.

I was wondering if I should indicate on EACH page of evidence the date it was orginally submitted, as well as the date it was resubmitted.

I wish you luck with this also,

Free

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.

[free_spirit_etc]

Thanks poolguy!

I certainly hope that it is true that someone qualified will handle it. There was quite a deal a couple of years ago about some ROs having VERY low rates of claims being granted - and low ratings. Chicago was one of them. So to "rectify" the situation - they had a special outreach - and if you were within one of those regions - you could contact them and let them know you wanted your claim reconsidered under the special outreach.

My husband contacted him - and all that happened was they sent him a cut and paste thing informing him that many things were considered in the adjudication and rating of claims - and basically that everyone was already getting what they were supposed to get.

What a farce THAT was. I hope this one is different.

Free

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.

[poolguy11550]

I always maintain that if you have a viable claim and keep the claim in active motion- you will certainly get it service connected eventually. Somewhere in the process a knowledgeable & effective rater will see the claim and act accordingly- its simply too bad that it statistically will happen many years after the claim was first filed and outside the originating Regional office. As far as northern RO's having poorer rating accuracy- statistics verify that point. There are many good folks working on claims and then there are others- the trick, I beleive is have as many eyes in the regional office see your claim for that reason. One set of those eyes my be the underlined factor to winning.