Stuck At The Decision Board And Nod Filing Time Is Expiring

[BasehorVet]

Hi I put together this NOD in regard to a previous Hadit forum post and would like some feedback on if I am on the right track. My Claim was denied in 7-2010 and I asked for a reconsideration of that decision and provided a buddy letter and letter from service department that proves my disability happened in the AF in 1985. My reconsideration claim has been at the decision board since 10-2010 and I can only wait on them a few more weeks before the time to file a NOD expires. I am trying to figure out since, I should be entitled to at least an early effective date from the new evidence presented should I not file the NOD and wait for them to notifiy me either way and then file a CUE or do I proceed now and waste the last year that it has been with the VA boards.

NOD Notice of Disagreement

06-09-2011

Department of Veterans Affairs

Attention: xxxxxxxxx In Reply to: (right hand corner of rating decision) ????

Dear Sir,

I received a rating decision dated July 12 2010. Consider this letter to be an official "Notice of Disagreement" (NOD) regarding the following disabilities:

1) Ebenefits (www.ebenefits.va.gov) states that "You were previously denied service connection for lower back. You were notified of the decision on July 19, 1985 and November 16, 1990. The appeal period for that decision has expired and the decision is now final. In order for us to reopen your claim, we need new and material evidence. Your claim was previously denied because the evidence fails to establish the veteran had a chronic back disability that was incurred or aggravated by during military service or that manifested itself within an applicable one year presumptive period following discharge from such service. Therefore, the evidence you submit must be new and relate to this fact."

Attachments:

A. Record of Proceedings - Air Force Board for Correction of Military Records, Docket Number BC-2010-02xxx, Dated May 5 2011, including Memorandum for AFBCMR from the Department of the Air Force. (states that I was medically discharged with severence pay)

B. Buddy Letter from Scott xxx Ret Master Sergeant USAF dated 09-21-2011. (says I never had any problems with low back until I was injured in the line of duty-we enlisted together under the buddy plan)

Law 38 CFR 3.4 (a) Disability compensation.

Law 38 CFR 3.156

Law 38 CFR 3.303 Principles relating to service connection.

Law 38 CFR 4.28 Prestabilization rating from date of discharge from service.

BVA Citation Nr: 0515336, Decision Date: 06/07/05 www.va.gov/vetapp05/files3/0515336.txt

BVA Citation Nr: 0600049, Decision Date: 01/04/06 www.va.gov/vetapp06/files1/0600049.txt

Cushman v. Shinseki, No. 2008-7129 (Fed. Cir. Aug. 12, 2009)

M21-1MR, Part I, Chapter 2, Section A

M21-1MR, Part III, Subpart iv, Chapter 8, Section E

M21-1MR, Part III, Subpart v, Chapter 1, Section D

M21-1MR, Part I, Chapter 1, Section B

I am requesting a "De Novo Review" by a new Decision Review Officer. I am requesting that I be allowed an in person hearing with a Decision Review Officer.

I will be awaiting your reply.

Sincerely,

Edited June 11, 2011 by BasehorVet

[Ethan'sGrandma]

If it were me, I would not give up my time for the NOD. There is no telling, really, if they will respond before the time for that is up. For my claim, they've had stuff just sitting for at least 16 months, from this last time. After speaking with my VSO, who went and actually looked at the folder, I was informed that it looks like there's a pend date of Nov., 2011 posted on it, which would make it at least 21 months before anything is done with it, so no, there is no telling how long before communication happens. Good luck with your claim!!

Edited June 11, 2011 by Ethan'sGrandma

[john999]

Do the NOD because doing a CUE can take years. I am on year 5.5 and I thought my CUE was obvious as paint. Not so in "reasonable minds" of the VA. The BVA and CAVC denied a CUE where the VA had forged a vet's medical records. Now I don't' think it can get worse than that, but the vet had to go to federal court just to get a remand. I think it has been a decade for that guy.

[Pete53]

Don't forget to include Form 9 with your NOD

[john999]

You can write on the Form 9 that you want a DRO Hearing. That is an option. If that fails you can go to the BVA. Now that is about 3-4 years down the road so let's hope you win this thing at your RO. You are cutting it very close, so I think you need to hand deliver this NOD. If you can't do that it must be sent certified mail/return receipt. The VA sticks to that one year rule for NOD's. I know that is the concensus here regardless of reconsiderations. You want to CYA to the maximum.

[sharon]

To file a NOD you simply have to send a statement that your disagree with the decision and wish to file an appeal. You will have plenty of time to prefect the evidence and complete the Form 9. Sending all the infomation up front does nothing to expidite the Appeal. The request for an Appeal secures your claim.

[carlie]

To file a NOD you simply have to send a statement that your disagree with the decision and wish to file an appeal. You will have plenty of time to prefect the evidence and complete the Form 9. Sending all the infomation up front does nothing to expidite the Appeal. The request for an Appeal secures your claim.

DITTO !