What To Do When Ro Fails To File Soc To My Nod

[broncovet]

I am seeking help to decide what to do when the RO simply ignores my NOD since 2004. One option I am considering is to file an I9 with the BVA and the RO

starting something like this:

I9 Notice of Appeal

The Veteran herewith files a notice of appeal to the BVA in the decision dated.......The Regional office has received my NOD (RO date stamped copy enclosed), but has failed to respond with a Statement of Case. Therefore, the Veteran is proceeding with the appeal "as if" the Regional Office had performed their duties, and requests the VA make a ruling on the merits of the case.

While some of the Veterans issues in 2004 have been successfully resolved with later RO decisions, none of them have successfully resolved the issue of the effective date.

The Veteran contends he is entitled to an earlier effective date because the RO has admitted to recieving the Veterans application for benefits on .......date, the date the Veteran requests the effective date be made.

[Vync]

It might be worth it to first contact the VA (IRIS or 1-800) and ask if they can give you the status of the claim. At least this way you might be able to find out something before you file additional paperwork.

[Berta]

"While some of the Veterans issues in 2004 have been successfully resolved with later RO decisions, none of them have successfully resolved the issue of the effective date."

Did you respond to those further decisions and question the EED in those responses?

[broncovet]

Yes, Berta. I am appealing the effective date of the 2009 RO decision, in part because the 2004 decision has not been made final because the appeal is still pending (tho it does not show up in ebenefits, so I know the RO wants to continue to ignore the 2004 NOD)

I have had about 5 RO decisions since 2004, most of them were denials. The 2005 RO decision did award partial benefits, and the 2009 decision awarded 100% P and T.

According to Case Law Review, as reported on Jim Stricklands website:

Case:

Jones v. Shinseki, CAVC No. 06-2036

BVA Decision: March 16, 2006

CAVC Decision: June 18, 2009

Key Issue(s): When is a claim that was appealed in a Notice of Disagreement (NOD), but for which VA never issued a Statement of the Case (SOC), decided?

Law: 38 U.S.C. §§ 7104, 7105

What was decided:

The Court decided that where a veteran files an NOD for a claim but VA fails to issue an SOC in response to the NOD, the claim is resolved in a later appellate adjudication of another claim, where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar.

What this means to veterans:

A Veteran has a right to an appeal of a claim denied by VA. If a veteran submits a proper NOD and VA does not follow through with a SOC and the rest of the appeal process, the claim remains “open” until and unless VA properly resolves the appeal. Claims which VA has “forgotten” keep their original effective date and so can have accumulated very large retroactive payments. Any veteran who believes that he or she has filed an NOD but has not received a VA acknowledgment of the NOD or a SOC after a reasonable time (several months at least) should review their records and submit a copy of the NOD to VA along with a request for an investigation into what happened to the original NOD. If VA cannot provide documentation of a final decision on that appeal or another claim stemming from the same condition and for the same disability, the veteran should request a decision on the appeal and an effective date of the date that the claim was originally filed.