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)

[Philip Rogers]

I don't think it's a matter of who's right or who's wrong, as it is a matter of being accurate info being posted. The law is alive and changing daily. jmo

pr

Edited December 25, 2012 by Philip Rogers

[carlie]

I don't think it's a matter of who's right or who's wrong, as it is a matter of being accurate info being posted. The law is alive and changing daily. jmo

pr

pr,

I sure agree with this.

[FormerMember]

Am I misreading this? Asking the VARO for a copy of your SMRs( now STRs) may take forever. There is no law that prevents you from obtaining them far faster at the NPRC in St. Louis. No FOIA and no special handling. Currently, they are running about 3 months on requests. If it is something that has been excavated more recently by the VA, it will be even easier to unearth. When filing a NOD (and be specific about wanting appellate review), you can expect a 3 month delay before there is even any acknowledgement of receipt. The average right now for issuance of a SOC would be about 14 months. Certifying an appeal can entail yet another year before the claim's departure to the BVA. By the same token, a request for a DRO hearing will delay progress for at least 8 months. All these scenarios offer ample time to obtain the SMRs from the NPRC. Expecting the VARO to drop what they are doing on your claim to make copies of the SMRs and mail them to you is a fool's errand.

Always remember that the introduction of any new and material evidence during this golden one year period following a denial resets the clock. While it's unfortunate that this individual has nothing in his ammo can to submit as new and material, simply obtaining his SMRs will not, in and of itself, provide something useful. If the VA has actually ignored some important medical fact contained therein, it can be cited on appeal as being material even though it is not "new". That much is established law. Similarly, it is not cast in stone anymore that a nexus letter from a doctor is not probative because he/she did not review the contemporary SMRs. The problem usually arises when the VA insists its VA examiner's nexus is more probative because it included a perusal of the SMRs. However, if the rationale is not supported by a reasoned discussion of why the examiner came to the decision, it will fail. I always advocate that you eliminate that loophole and get the SMRs to the appropriate doctor(s) for a well-written nexus. Attempting to get the SMRs in mid-stream is always a bad idea but better than making a half-hearted attempt at a JMR at the CAVC after the decision is cast in stone.

38 CFR 3.156(b) is the salient regulation here. It in no uncertain terms lays out the pertinent law to follow. If, after receipt of a SOC, you submit new and material evidence, you in effect reset the clock yet again and a new decision must be formulated. It cannot be announced in a SSOC but must be in the form of a new denial. The current sixty day rule for answering the SOC is waived and is tolled from the mailing of a SSOC. Look at VAOPGCREC 9-97 for a more nuanced description of what ensues under these unusual circumstances.

Basically, as long as you continue to throw new and material "logs" on the fire, you can hold the one year statute of limitations on your appeal in abeyance indefinitely. When you finally run out of these logs, you can ask for a RO hearing or a DRO hearing to plead your case. After exhausting that venue, you can always ask for a Travel Board hearing before the VLJ who will hear your case. This request, if submitted asking for a face-to-face with your VLJ in your Form 9, will require up to a year to arrange unless you are fast-tracked on a 38CFR 20.900 © advancement on the docket. This will again delay exponentially your inevitable BVA adjudication. With all these delaying ploys, the opportunities to build up new evidence are myriad. Look no further than me. I filed in 3/94. Denial was 11/94. N&M evidence submitted with NOD 12/94. VA dropped the ball. I refiled the old claim in 2/07 and won in 6/08 with the old evidence. It's now at the CAVC. GCPREC 9-97 was written about a Vet who was three months behind me with almost identical circumstances (38 CFR 19.31). VA is not well-versed on 3.156(b) and neither is the CAVC. judging by Bond v. Shinseki --http://asknod.wordpress.com/2011/10/08/fed-cir-bond-v-shinseki-2011/ .

VA needs to learn how to become more interactive with Vets. This would eliminate some of the uncertainty we encounter. Often, we only know VA actually received something if two things occur: we get our "green card" back from the USPS or we get a SOC fifteen months later. I suppose we can access the IRIS system and ask for confirmation. If we are represented by a VSO, we can also pester them to go find out but that can take as long as the SOC sometimes. A timely filed NOD is all well and fine but in and of itself, it will not induce VA to change its mind. New and material evidence will be the panacea in all likelihood and sometimes not until arrival at the BVA will it be recognized for what it is. Richard Bond's decision illuminates the proclivity on the CAVC's part to continue its hindbound, myopic judicial path and not raise any new precedental interpretations. This should have ended there but it took an additional trip up to the Federal Circus to get it "just right".

By the way, VA attempted to change the CFRs to 30 days from the date of issuance of a SOC or SSOC but the howls of anger from VSOs made them retract their proposed changes. It's still 60 days from day of issuance of the document(s) currently.

Edited December 25, 2012 by asknod

[rdawg]

"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.....

this is a differing of opinion and what i expected.

Edited December 26, 2012 by rdawg

[FormerMember]

Whether the VA considers NODs to be adversarial is immaterial. Anything that collides with a smooth denial process will always be adversarial to them. The important thing is to assemble the components needed to win. Parsing the individual aspects of their judicial processes is a non starter. Any County prosecutor is probably less than enchanted to find out someone is appealing their murder conviction. Beating the VA is done by emulating their tactics. http://www.barnesandnoble.com/s/asknod?dref=1

[Berta]

"Beating the VA is done by emulating their tactics."

That profound statement is the essence of every Award I ever got.

You are correct!

"By the way, VA attempted to change the CFRs to 30 days from the date of issuance of a SOC or SSOC but the howls of anger from VSOs made them retract their proposed changes. It's still 60 days from day of issuance of the document(s) currently."

THANKS!!!!!- I griped about that at the Fed Reg and to Bradley Mayes or whoever , when VA proposed it and I forgot how it turned out.........

The VA certainly reads our comments to proposed rules.

We couldn't dissuade them regarding the new PTSD regs years ago but if a few hundred more vets,spouses, lawyers, and VSOs griped -maybe the new PTSD criteria would be different

.....and maybe not........I am still POed over that.