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]

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

Whether the VA considers NODs to be adversarial is immaterial. disagree. As soon as the NOD is filed they blame everything on the fact that it is in "appeals" now and that could take years to resolve. They already slow snails pace that they operate at comes to a screaching halt and your claim just went to the bottom of the pile.

Anything that collides with a smooth denial process will always be adversarial to them. disagree. They may or may not want to grant service connection (probably varies by employee) but they surely don't want to be blamed for thier accuracy rate going down or thier end product percentages taking a dive. Self preservation overides distain for the vet.

The important thing is to assemble the components needed to win. agree. My point exactly. If you don't supply the required evidence from the beginning, then file a strongly worded NOD without any additional evidence, you just picked a fight. If you supply all of the required evidence from the beginning and they ignore the evidence or make up thier own version of the rules then by all means stick it to them with everything you have.

Parsing the individual aspects of their judicial processes is a non starter. This is what we do on Hadit. It helps a lot of veterans.

Beating the VA is done by emulating their tactics. disagree. provide the required evidence for service connection is the only way.

[rdawg]

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.

There is no law that prevents you from obtaining them far faster at the NPRC in St. Louis. correct but they will tell you they sent them to the VARO and you should obtain them from there. The last time I requested a copy they were all digitized. I called the 800 #, they pushed a button, the copies were automatically made and mailed. I got them in 10 days. Not all VARO's are like that yet.

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. You just listed 3 years of wait time just by filing a NOD. SPCDEARMAN did not provide the required evidence for service connection to begin with. Now he should wait 3 years for them to look at evidence he is going to obtain and submit in the next 6 mos.? It doesn't make sense. Just submit the correct evidence and ask for a reconsideration based on that evidence. Still denied then NOD.

Always remember that the introduction of any new and material evidence during this golden one year period following a denial resets the clock. partially agree. The term "new and material" refers to a strick standard that must be met to re-open a finally adjudicated (closed) claim. The standard for evidence that is submitted within the one year mark is lower. In other words, they must review and issue a new decision on whatever you submit. If it is duplicative they will say so in the new denial and your year is reset from the new denial.

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. This does not apply here because he has not submitted a NOD. This is my point. Don't submit the NOD. Get a good IMO and ask for a reconsideration based on the "new" evidence submitted. You can also point out any mistakes you think they made (In SPCDEARMANS case they clearly worded the denial incorrectly) in the 21-4138.

[rdawg]

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.

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. Just not true.

[broncovet]

The "new and material evidence" standard is not strict. It need only "show a reasonable chance of substantiating the claim". This is not the "undebatable" standard of CUE. If, indeed the VARO denies your "New and material Evidence" claim they must issue a decision to that effect. There is no precedence that allows the VA to "deemed deny" a Veterans request for reconsideration, but they must instead issue a decision denying the request to reopen due to N and M evidence.

The "pending claim doctrine" supports the position that a claim is pending until the VA issues a decision or that the Veteran could "reasonably ascertain" his claim had been denied.

[broncovet]

Dawg...

The effective date is the later of the "facts found" or the date of claim. The VA can and often does give a later date than the date the Veteran applied whenever the doc's c and P exam suggests the maladay began at a later date.

[rdawg]

The "new and material evidence" standard is not strict. It need only "show a reasonable chance of substantiating the claim". This is not the "undebatable" standard of CUE. If, indeed the VARO denies your "New and material Evidence" claim they must issue a decision to that effect. There is no precedence that allows the VA to "deemed deny" a Veterans request for reconsideration, but they must instead issue a decision denying the request to reopen due to N and M evidence.

The "pending claim doctrine" supports the position that a claim is pending until the VA issues a decision or that the Veteran could "reasonably ascertain" his claim had been denied.

You are splitting hairs. My point is, the "new and material" standard does not apply unless the claim has been closed. Compared to the standard (none) of when the claim is open the "new and material" standard is strict. There are many BVA cases where the claimant filed to re-open and was denied because the evidence submitted was not new or material.

Edited December 26, 2012 by rdawg