What To Do When The Regional Office Violates Regulations?

[broncovet]

What can we Vets do when the Regional Office Fails to follow Regulations?

Example: The Cleveland Regional Office is supposed to consider all claims and evidence before rendering a decision. Moody vs Principii says it this way:

"the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.”

So, what do I do now that the Cleveland Regional Office "overlooked" my claim for more than 5 years, and refuses to acknowledge it?

I filed a NOD in 2004, and the Regional Office ignored my NOD and "interpreted it as a claim for benefits" instead.

What can we Vets do to force the Regional Office to obey its regulations? All my "Statements in support of claim" as well as 3 NOD's from 2004-2008 have simply been ignored.

Edited January 3, 2009 by broncovet

[jbasser]

Does anyone ever wonder why Veterans who work for the Internal Revenue Service seldom have any VA problems at all.?

J

[rentalguy1]

Does anyone ever wonder why Veterans who work for the Internal Revenue Service seldom have any VA problems at all.?

J

[yoggie2]

What can we Vets do when the Regional Office Fails to follow Regulations?

Example: The Cleveland Regional Office is supposed to consider all claims and evidence before rendering a decision. Moody vs Principii says it this way:

"the VA has a duty to “fully and sympathetically develop a veteran’s claim to its optimum,” 251 F.3d at 1384 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), and that this requires the VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.”

So, what do I do now that the Cleveland Regional Office "overlooked" my claim for more than 5 years, and refuses to acknowledge it?

I filed a NOD in 2004, and the Regional Office ignored my NOD and "interpreted it as a claim for benefits" instead.

What can we Vets do to force the Regional Office to obey its regulations? All my "Statements in support of claim" as well as 3 NOD's from 2004-2008 have simply been ignored.

I think just about all here has experienced this in one form or another, you file an NOD and ask for a "DRO Hearing" I think this is the only way you'll find to be treated fairly because its on record. Mine was a butcher job as well and I personally feel this is the only way to plead your case.....Yog

[Capt.]

Hello Bronco,,,,,Rental and Yoggie are bringing up good points. First how did the NOD read exactly and I would also get the DRO so you can have that meeting documented on your NOD. Once these meetings take place , something must be said, agreed or disagreed and will or should become record of your claim. Providing they don't shred it. I have my NOD with my lawyer being filed before April and the waiting game begins. Its all about time and how to delay it. This is there big weapon and they hope the veteran has a memory laspe or is too busy to respond therefore the time period laspes and the Vet is out of luck. I believe that the time elements cost the Veteran more loss of claims or denials than any one thing. If we think it is not so then take a look at the BVA court rulings and all of the REMANDS , and the backlog of over 8000000 claims. I would watch my dates , register all mail correspondence, find out what they deny or have a problem with from the SOC or denial letter and directly address that specifically. Not seeing what they said is kind of not helping us here to help you better. But remember ...NEVER GIVE UP. God Bless, C.C.

[Berta]

The NOD must specifically disagree with a decision.

While there is no real form a NOD needs to be written in, it should clearly statement that you feel the denial is wrong and then it pays to expand on why it is wrong.

A good NOD can sometimes get an award letter-

I saw a case at the BVA where the RO had said the veteran's letter to them was not a proper Notice of Disagreement and could not be construed as a NOD.

The Vet appealed to the BVA and the BVA found that his vet rep also had filed a 2138 that definitely disagreed with the decision -which the BVA accepted as a formal NOD.

A NOD can be prepared by either the vet or his/her vet rep with their POA.

I saw a NOD that a wife had prepared. I prepared NOds for my husband but he always signed them.

The wife had signed the NOD. The BVA rejected it as the vet was alive and able to have signed this himself.

We cannot determine iof your NOD was valid or not unless we can see what you sent them.

Did your rep possibly prepare a 2138 too that VA overlooked but could have been a valid NOD?

[broncovet]

Thanks Everyone on your good advice. A NOD was defined in the Supreme court, Gallegos vs Principii as follows:

the regulation specifically states that "special wording is not required." 38 C.F.R. 20.201. It requires only that an NOD that serves to initiate the appellate review process contain language "which can be reasonably construed as * * * a desire for appellate review." Ibid. Moreover, the VA construes 38 C.F.R. 20.201 liberally in favor of triggering appeal rights. As it explained when the regulation was promulgated:VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement. The continuation of this policy is demonstrated by the lack of a requirement for special wording and the use of the phrase "can be reasonably construed." Nevertheless, some indication which reasonable persons can construe as disagreement with a determination by an agency of original jurisdiction and a desire to appeal that determination is at the very heart of what constitutes a Notice of Disagreement. Without such an expression, the communication may be something, but it is not a Notice of Disagreement. Not much is required, but the communication must be recognizable as a Notice of Disagreement.

In my case, this is what I wrote: "I believe the Regional Office Decision dated February 20, 2004 is in error for the following reasons:..."...I further stated that "the "disability rating should be adjusted to include tinnitus" and EVEN used the word "appeal process"

I would like to point out that my NOD had a Regional Office "Stamp" on it with the word "appeals" circled and initialed by a VA employee. On the top of the NOD it says "CVA" (which stands for Court of Veterans appeals).

My NOD meets the 2 regulatory requirements..1) The Veteran expresses disagreement or dissatisfaction with the decision, and 2) The Veteran indicates a desire to contest the result.

I would like to also point out that I have filed TWO OTHER timely filed NOD's, those with my Veteran Service Officer with bold lettering "Notice of Disagreement" on top, and The Cleveland Regional Office has refused to process those NOD's either, but have given no excuse as to why not.

So as to remove all doubt, I filed a clarification of the NOD (the RO is required to ask for clarification in the event the NOD is unclear, per regulations), and Clarified that I was alleging Clear, Unmistakable Error.

The "Cue" part is important in that, CUE claims ARE NOT limited by the one year period, and CUE claims can be filed anytime, though CUE is harder to prove than a regular appeal. I am confident that I can prove CUE, however, the Cleveland Regional Office steadfastly refuses to consider my NOD with CUE, which is contrary to the regulations, but I cant seem to be able to make them follow their own laws.

Edited January 7, 2009 by broncovet