Appeal Whlie Waiting Decision On New Evidence

[Signal6]

This site is great, I am so glad I found it. Dealing with the VA is a nightmare and I appreciate the support everyone offers on this site.

Ok, I was wounded in Iraq, April 2005. I filed my initial claim in Dec 2006 as soon as I returned. My initial rating was 30%, but they rated my sinusitis and allergic rhinitis at 0%. I wrote them and sent in additional evidence and they increased it to 10%, 40% total. I filed at notice of disagreement and received an answer from a DRO in Nov 2007. I replied to the answer and said I still disagreed and sent them new medical records from my on going sinus problems. I just sent in more records from the Miami VA and my private doc.

So, my question is did I wait to long to file an appeal for my sinusitis and allergic rhinitis? I sent them 11 records of sinusitis in one year (2005) and also a CT scan revealing polyps in my sinuses (2006) but they ignored both. the DRO only counted 4 records for sinunsitis and said the CT scan wasn't an absolute diagnosis for polyps because a VA doctor at C&P didn't see them during a visit. It would be kind of hard to see poylps within the sinusis with out an MRI or CT scan,but that is what they said.

Second question, if it isn't to late, should i wait until they review the new evidence I sent in (records from 2008 for 8 episodes of sinusitis and another CT scan from VA showing polyps in the sinusis)?

Thanks again

Tom

[Ron II]

You will receive much more comprehensive advise from this board, but I would like to offer that the review of new and material evidence takes a long time...at least it has in my case.

It has been more than one year since I submitted my new and material evidence...

Good luck,

Ron

[carlie]

I would not file anything else -- unless asked --

until I got a decision. At this point it will just

muck everything up and take longer for a decision.

jmho,

carlie

[vaf]

How soon did you reply to the DRO's decision dated November 2007? It sounds like you disagreed timely to the DRO's decision, and your next step would have been to file an appeal with the Board of Veterans Appeals in Washington, D.C. Do you recall doing that?

If that's the case, you can continue sending in more evidence if you have it up until the point that the Board reaches a decision.

I guess I'm not seeing a clear picture of the timeline.

[Signal6]

I replied that I disagreed but I did not file an appeal to the Board of Veterans Appeals. Wondering if I still have that option, or did I wait to long?

[john999]

You need to find out the status of your claim. You usually have one year to appeal to the BVA via a Form 9 after a decision from the DRO or any other decision maker at the VA. I got a DRO Review and it was negative on an issue, and then I asked for a Personal Hearing with the DRO. This all took more than a year. I did not go to the BVA, but I exceeded the one year time limit from my first DRO decision and yet I still got a hearing at the VARO and a decision. When a claim gets to the DRO it seems the time factor gets lost as well as some evidence. The rule, however, as I understand it is one year from the time of a decision to go to the BVA.

[broncovet]

Signal

You have a year from the decision to file a NOD. It sounds like you did that within the year.

There are two exceptions to the "one year rule"

Exception 1. In the Event of Clear Unmistakable Error, the one year limit does not apply. CUE is a higher stand than a conventional appeal..it is a collateral attack upon the decision. However, if they ignored evidence, that is an example that meets CUE standards. Read the stuff on CUE on Hadit.

Exception 2. An exception to the one year rule is made in the event of multiple appeals.

Someone else may be able to post the link to these rules, I could find them if no one else comes up with them.