My Nod For Forum Review.

[SpcDearman]

Here is what I will be sending on Monday. i want to have the entire weekend for you guys to opine.

TO: Department of Veterans Affairs

This is a Notice of Disagreement with your rating decision dated 11-1-12 which denied my claim for bilateral shoulder, bilateral knee, and lung condition . I request my claim be afforded a de Novo review by a Decision Review Officer and a Statement of Case (SOC) be prepared and forwarded to me. I also hereby request all copies of my Service Medical Records to be used for review by my private physician.

Thank you.

Disgruntled Vet. (ok i might put my real name here lol)

[rdawg]

Rdawg,

I was confused until that last post. Correct me if i failed the EED class lol.

1. Get those dag gum SMRS (ordered on nov 6 2012 with confirmation receipt)

2. Get either my PCP or another doctor to provide an Imo.

3. IF WITHIN MY YEAR, send IMO to VA appealing. (21-4138)

4. IF NOT IN ONE YEAR, send in NOD.

Submit that form due to it asking for reconsideration and wait for a denial (joking i am thinking positive.)

Got it?

correct. except number 3.

3. IF WITHIN MY YEAR, send IMO to VA and ask for reconsideration. (21-4138)

if your IMO is a good one I see a victory. like Carlie said you already have 2 of the 3 requirements for service connection. You need the nexus and a good IMO will give you that nexus. Good luck.

Edited December 28, 2012 by rdawg

[rdawg]

Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.

Submitting additional evidence and requesting the claim to be reconsidered,

does not stop the NOD clock or extend the one year period that the claimant is afforded,

to submit their NOD.

Carlie, This is your first reponse to my first post on this thread. This statement is not true.

[rdawg]

so many things wrong. where to start???

I have no idea why you continued to be confused on my position in this thread as
my position has remained the same consistently,throughout the thread.

My position has been clear. not
My post do not confuse what you refer to above as an "open claim with a final claim". you refer to it in this thread see (A) below. the only claim that need to be re-opened is a finally adjudicated claim.

My post are very clear in that
with solely submitting new evidence within the one year timeframe
for NOD(appeal)
in reply to a rating decision,
versus submitting a NOD,
does not in and of itself,
perserve an earlier effective date. does

The submission of the new evidence
within the one year appeal period
will put the claim
into a pending claim status. yes

If the VA decides that the new evidence is
1)both new & material to the issue denied on the prior decision this applies to reopeneing a final decision. does not apply to Spcdearman
2)and this evidence results in a revision of the prior decision true
3)the effective date should be the earlier date on which the claim was submitted. yes

IF 1 & 2 do not happen and the one year to submit a timely NOD passes, 1 does not have to happen. the standard is new evidence not new and material

2 can be a grant or denial and the eed is intact. the nod clock starts again from the new decision date.
(other than CUE found at a later date)
the earlier effective date goes down the drain. not ever ever ever

I find no change shown in regards to my position in this thread.


"Regardless of what new evidence you submit on your issue/s, I continue to strongly
suggest you keep your eye on the one year NOD clock (from your prior decision),
so IF VA does not consider this evidence as new and material and/or the evidence is not
sufficient to warrant a revision in the prior decision - then you can withdraw your
current request of adjudicative action and submit a timely NOD, to perserve the earlier
effective date." same stuff just worded differently - still wrong. actually backwards.

"If the new evidence submitted during the appeal period,
does not result in a revision of the prior decision
and a timely NOD is not of record
prior to the end of the appeal period,
and the claim remains denied,
with the exception of a CUE being granted,
the earlier effective date will go down the drain." wrong

"All I have left to post on this topic is that, i wish
when a claimant responds to a rating decision (whether it is within or after the one year appeal period)
by submitting new evidence versus filing a NOD, the va 's action will be to process the claim, as a (A) reopened claim. not true. if within a year of the decision the claim is still pending, not reopened, big difference.

Under 3.105 (b) and 3.400 (h) (1), this reopened claim can still receive the earlier effective date.

If the new evidence you submitted is not sufficient to warrant a change in the prior decision and
your appeal period to submit a NOD has expired - your earlier effective date just went down the drain."

"Here's an earlier effective date claim that relates to the
situation a claimant face's if they only submit evidence
within the one year NOD time frame provided for after notification,
versus submitting an actual NOD.
BVA determine that the "additional medical evidence",
submitted during the NOD time frame - was a 'notice of disagreement'.

The portion that is underlined below show's the pitfalls the claimt's issue for
effective date faced, at the VARO level. These are some of the same pitfalls
I've posted in this thread.

Had the claimant actually filed a timely NOD, they most likely
would not have had to go to the BVA to appeal the effective date." they went and won proving my point is correct

"I believe that when this "new evidence" is submitted and considered,
the claimant can also wind up receiving an SOC that provides for 30 or 60 day response timeframe.
When this happens a new NOD clock of one year would not start again." wrong

"My disagreement is in regards to (as I posted),
"Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.
Submitting additional evidence and requesting the claim to be reconsidered,
does not stop the NOD clock or extend the one year period that the claimant is afforded,
to submit their NOD."
and
"I'm still in hopes others chime in on whether that one year NOD clock
is stopped or extended, due to a request from the claimant,
for reconsideration at the VARO level."

"Once a decision is mailed the claimant has one year to file a NOD with the AOJ - period.
Submitting additional evidence and requesting the claim to be reconsidered,
does not stop the NOD clock or extend the one year period that the claimant is afforded,
to submit their NOD." not true

[carlie]

Carlie, This is your first reponse to my first post on this thread. This statement is not true.

Yes, you are correct and that quote is included in my quote's posted below.

I continue to stand by my words.

I will gladly agree to disagree with you, but I will not agree to

change my words and understanding of the reg without you posting

law/reg/M21-1MR instruction that shows differently.

[Philip Rogers]

Here's the way I see it: Any time the VA receives additional evidence, they are required to re-decide the claim, either for or against. Failure to do that is an error in procedure. Once they decide a new year begins.

pr

[rdawg]

Yes, you are correct and that quote is included in my quote's posted below.

I continue to stand by my words.

I will gladly agree to disagree with you, but I will not agree to

change my words and understanding of the reg without you posting

law/reg/M21-1MR instruction that shows differently.

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=549cda86648188a6a068def5530850c9&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.69.173

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

the claim remains an "original claim" as long as it is pending. denied - submit new evidence - still denied - still an original claim. NOD clock starts on last denial. pretty simple.