Imagine filing a claim in 3/94 for 3 items (Hepatitis, PCT, and tinnitus). Denied 11/94. Filed NOD 12/94 w/ New and Material evidence to rebut denial of all three. Received SOC in 1/95 acknowledging receipt of new info and promising review and a new decision:
"We are reviewing the additional records you submitted with your appeal and will notify you of our decision when it is reached. We are scheduling another examination to see if your Tinnitus has worsened."
I attended the Tinnitus exam a month later on 2/8/95. No reply for 13 years. Refiled same claim for same 3 items on 2/07. VA immediately (5/07) granted Tinnitus retroactive to 94. VA finally granted hep. after 16 months on 7/08 but only back to refiling of 2/07. I filed NOD on hep. asking for 3/94 date as soon as I got the grant. They said in DRO decision that I filed a NOD in 12/94 but do not mention any N&M evidence whatsoever, therefore no F1-9 within one year equals no appeal:
"Mr. Buckwheat filed a Notice of Disagreement on December 7th, 1994 and a Statement of the Case was issued on January 9th, 1995. Since no appeal was received in one year, the appeal period expired on November 9th, 1995."
VA granted PCT 10/08 but again only to 2/07. I filed a NOD on PCT decision for the 3/94 date when I received that grant, but this time they admitted they received N&M evidence filed with the 12/94 NOD. The DRO's SOC denial reads:
"Our statement of the case issued January 9th, 1995 included a VA Form 1-9 Appeal to the Board of Veteran Appeals and a cover letter notifying you that you had 60 days in which to submit a substantive appeal. The narrative portion also noted that the evidence was received and that you would be further notified of a decision. This subsequent decision would have been a Supplemental Statement of the Case issued subsequent to your filing a timely VA for 1-9. We did not receive a Form 1-9, or other intent, to file a formal appeal with the decision denying SC for PCT. Our prior decision is considered final because a substantive appeal was not filed with the Regional Office of Jurisdiction." (emphasis mine)
My question, I believe, is elementary. A claim is not sent to appeal until finally adjudicated at the RO. A SSOC is basically a continuing denial of a claim after an SOC . So VA, if I read this correctly, is saying the new denial (a SSOC) could not be mailed to me unless or until I filed the F-9. This implies that they had made the decision to deny me before I even completed the appeals process. Doesn't this fly in the face of 3.156(b)? Once new and material evidence is received, the decision making process goes back to square one and a new decision ensues. If, and I emphasize "if", another denial is issued, it would arrive in the form of a SSOC. I understand that. At that point, and not before, a F-9 would be in order to complete the requirements of a substantive appeal if I read the regulations right. It seems it would be out of order to file for a substantive appeal prior to a new decision after new evidence has been submitted and one is waiting on the new decision. What would happen if they granted my claim after reviewing the N&M evidence? Would I still have to file a F-9 to be informed of my grant? The way they describe the process, it is implied that the F-9 would have to be filed to obtain any info.-positive or negative. So, the big question: Is it necessary to file a F-9 in order to get a SSOC? Seems to me the DRO has the cart before the horse. I know they aren't eager to pay me back to 94 for this, yet they did it with the tinnitus claim without me even asking. I honestly didn't think I had won in 95 and that the denial probably got lost in the mail. I figured that if I had won, the VSO would have the decency to let me know. Could it be that the tinnitus was small potatoes ($15K+) compared to the eventual financial cost of the other two? My VSO is non-committal on this. He doesn't think VA will ever pay me but cannot (or will not) cite to any regulation that addresses a situation like it. He filed the appeal only after I pointed out the 1994 tinnitus grant. I don't think he knows the answer.
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Buckwheat
Imagine filing a claim in 3/94 for 3 items (Hepatitis, PCT, and tinnitus). Denied 11/94. Filed NOD 12/94 w/ New and Material evidence to rebut denial of all three. Received SOC in 1/95 acknowledging receipt of new info and promising review and a new decision:
"We are reviewing the additional records you submitted with your appeal and will notify you of our decision when it is reached. We are scheduling another examination to see if your Tinnitus has worsened."
I attended the Tinnitus exam a month later on 2/8/95. No reply for 13 years. Refiled same claim for same 3 items on 2/07. VA immediately (5/07) granted Tinnitus retroactive to 94. VA finally granted hep. after 16 months on 7/08 but only back to refiling of 2/07. I filed NOD on hep. asking for 3/94 date as soon as I got the grant. They said in DRO decision that I filed a NOD in 12/94 but do not mention any N&M evidence whatsoever, therefore no F1-9 within one year equals no appeal:
"Mr. Buckwheat filed a Notice of Disagreement on December 7th, 1994 and a Statement of the Case was issued on January 9th, 1995. Since no appeal was received in one year, the appeal period expired on November 9th, 1995."
VA granted PCT 10/08 but again only to 2/07. I filed a NOD on PCT decision for the 3/94 date when I received that grant, but this time they admitted they received N&M evidence filed with the 12/94 NOD. The DRO's SOC denial reads:
"Our statement of the case issued January 9th, 1995 included a VA Form 1-9 Appeal to the Board of Veteran Appeals and a cover letter notifying you that you had 60 days in which to submit a substantive appeal. The narrative portion also noted that the evidence was received and that you would be further notified of a decision. This subsequent decision would have been a Supplemental Statement of the Case issued subsequent to your filing a timely VA for 1-9. We did not receive a Form 1-9, or other intent, to file a formal appeal with the decision denying SC for PCT. Our prior decision is considered final because a substantive appeal was not filed with the Regional Office of Jurisdiction." (emphasis mine)
My question, I believe, is elementary. A claim is not sent to appeal until finally adjudicated at the RO. A SSOC is basically a continuing denial of a claim after an SOC . So VA, if I read this correctly, is saying the new denial (a SSOC) could not be mailed to me unless or until I filed the F-9. This implies that they had made the decision to deny me before I even completed the appeals process. Doesn't this fly in the face of 3.156(b)? Once new and material evidence is received, the decision making process goes back to square one and a new decision ensues. If, and I emphasize "if", another denial is issued, it would arrive in the form of a SSOC. I understand that. At that point, and not before, a F-9 would be in order to complete the requirements of a substantive appeal if I read the regulations right. It seems it would be out of order to file for a substantive appeal prior to a new decision after new evidence has been submitted and one is waiting on the new decision. What would happen if they granted my claim after reviewing the N&M evidence? Would I still have to file a F-9 to be informed of my grant? The way they describe the process, it is implied that the F-9 would have to be filed to obtain any info.-positive or negative. So, the big question: Is it necessary to file a F-9 in order to get a SSOC? Seems to me the DRO has the cart before the horse. I know they aren't eager to pay me back to 94 for this, yet they did it with the tinnitus claim without me even asking. I honestly didn't think I had won in 95 and that the denial probably got lost in the mail. I figured that if I had won, the VSO would have the decency to let me know. Could it be that the tinnitus was small potatoes ($15K+) compared to the eventual financial cost of the other two? My VSO is non-committal on this. He doesn't think VA will ever pay me but cannot (or will not) cite to any regulation that addresses a situation like it. He filed the appeal only after I pointed out the 1994 tinnitus grant. I don't think he knows the answer.
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