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)

[Berta]

GREAT post Carlie!

Philip said:

"The RO's make so many errors "because they are not attys" that almost any claim can be found to have a remandable error."

I fully agree and after Christmas I will provide a template here for anyone, who has found a legal error in their initial decision,

that manifestly altered the outcome of that decision,

to request that the VA call a CUE on itself regarding the decision and then to do it right.

As I mentioned before, this tactic has worked for me,(always with a fast result) and I presently have a request like this pending as well, and I have discussed this with 2 or 3 vet lawyers as a potential way to reduce the backlog.

It certainly wont work for everyone.

It rests solely on a legal error.

And it forces the RO to do ,years down the road, what a BVA remand would tell them to do.

There is no regulation for this.

I have learned we often must think out of the box and use 38 USC/CFR, and M21-1MR to our utmost advantage,

as VA does, to our detriment.

[rdawg]

this case was decided in 1998. Other precedent setting cases have been decided since then. Look at the link provided by broncovet. I think one of them was in 2009 Young vs ??.

I stand by my original statement.

note - I never said that submitting additional evidence was not effectively submitting a NOD. It is. What it isn't is a confrontational slap in the face to the VARO. SPCDEARMAN did not have the correct evidence to award SC. Did the VA get some things wrong, yes. Berta has always said that it is medical evidence that wins. If SPCDEARMAN had submitted the correct medical evidence and the VA still denied then I would say file the NOD and stick it to them with everything you have.

My original statement is correct. If you submit additional evidence within the NOD timeframe the EED is preserved even if you don't submit the NOD within the NOD timeframe. The NOD clock starts over again once another decision is made and mailed.

[carlie]

this case was decided in 1998. Other precedent setting cases have been decided since then. Look at the link provided by broncovet. I think one of them was in 2009 Young vs ??.

rdawg,

I did read it in it's entirety, it's a good read and clearly spells out the pitfalls

the effective date can face when only "additional evidence"is submitted during

the NOD timeframe, versus the receipt of an actual NOD.

Had the claimant submitted a NOD along with the "additional evidence"

versus only submitting the "additional evidence"

they could have easily prevented the downstream need to appeal, for

an earlier effective date.

Personally, I would much rather have all issues within a claim granted, without need

for any issue to be appealed, after service connection is granted.

I stand by my original statement.

note - I never said that submitting additional evidence was not effectively submitting a NOD. It is.

What it isn't is a confrontational slap in the face to the VARO.

The VARO does not consider the submission of a NOD as a confrontational slap in the face -

that would be an emotional reaction and the VARO does not have emotions.

SPCDEARMAN did not have the correct evidence to award SC. Did the VA get some things wrong, yes. Berta has always said that it is medical evidence that wins.

I agree that claims are won with credible and probative medical evidence

along with the correct application of laws and regs.

My original statement is correct. If you submit additional evidence within the NOD timeframe the EED is preserved even if you don't submit the NOD within the NOD timeframe.

I have no disagreement with the underlined above. I have not posted that this can't be done.

My disagreement is that it is not the most beneficial action a claimant can take to

preserve an effective date.

Taking this action versus submitting a NOD, leaves an effective date vulnerable to error,

which leads to further depravation of benefits until it is settled through the appeals process.

The first pitfall in the situation above (vulnerability of earlier effective date)

is that when service connection is eventually granted,

it is now a downstream appeal issue for effective date.

The "additional evidence" submitted prior to the expiration of the appeal period,

will be analyzed to see if it the evidence itself, meets all the criteria in the regs above,

(that support an earlier effective date for pending claims).

If the additional evidence does not meet this criteria, a claim for earlier effective date will be denied.

Another criteria in the reg is that if the results are a proposed revision it will need to be

recommended to Central Office.

This just adds even more time to the claimants wait.

I am in no way posting that your theory for earlier effective date can not prevail,

what I am trying to get across is that it is not the best course of action a claimant

can take to preserve their effective date.

carlie

[rdawg]

I am in no way posting that your theory for earlier effective date can not prevail,

what I am trying to get across is that it is not the best course of action a claimant

can take to preserve their effective date.

carlie

Carlie,

Did I misread your first post (below) after I suggested that the eed could be retained by submitting new evidence and not a NOD? It is not a theory it is law.

Admit that your theory is wrong and what you have been posting is your opinion. Its OK, we can't be right all the time.

I would have to strongly disagree with some of the above.

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]

Carlie,

Did I misread your first post (below) after I suggested that the eed could be retained by submitting new evidence and not a NOD? It is not a theory it is law.

Admit that your theory is wrong and what you have been posting is your opinion. Its OK, we can't be right all the time.

rdawg,

Being that I have chosen to participate in this topic, for the reason of debating the

laws and regs, I do not choose to stay in it just for the sake of arguent on who is right

or who is wrong.

As you have posted,

"You have one year to file a NOD or submit new evidence. There are differing opinions on this board as to which way to go. My opinion is based on my experience.

Here it is for what its worth. The VA does not like NODs. They consider them to be adversarial. Like I said you are on the correct track. Your next step depends on the strength of the IMO you are able to obtain. If it is a strong IMO, written by someone who understands VA law and language, and it is able to refute the negative C&P then I would submit it and ask for a reconsideration based on the newly submitted evidence. I would not even mention the NOD. Once they reconsider your claim then your clock starts over. You will have another year to file a NOD from the second decision if it is denied. This also preserves your earlier effective date of the original claim (good retro)."

"I'm not talking about new and material evidence to reopen an already final claim. That is not SPCDearman's situation.

Once you receive a decision on a claim you have up to one year to submit new evidence. The VA must consider this new evidence, even if it is not new (dupliticave) or material. The one year appeal and new evidence period starts over again once another decision has been made."

"note - I never said that submitting additional evidence was not effectively submitting a NOD. It is."

"My original statement is correct. If you submit additional evidence within the NOD timeframe the EED is preserved even if you don't submit the NOD within the NOD timeframe. The NOD clock starts over again once another decision is made and mailed."

All I have left to post on this topic is that,

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 reopened claim.

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.

[deanbrt]

"The VA does not like NODs. They consider them to be adversarial."

I did them as a matter of course on the presumption my only way of prevailing was at BVA.

My personal belief to this day is that the likelihood of success at the RO is slim and Slim just left town.....