Nod Deadlines

[Berta]

I hope no one here ever has to rely on this tactic.

There is usually no good reason for any claimant to miss a NOD filing deadline

However I am trying something to see what the result will be... it could possibly help someone else:

I have to file a NOD by Monday. I still have a little more time but need to get it in the mail.

The VA has not acted on my request that they CUE themselves on one statement in my Jan 2012 award letter.(I had to send this request to 2 separate VAROs to determine jurisdiction)

I cannot use ebenefits as a widow of vet, and IRIS keeps saying I am using the email of another user. Also weeks ago when I used the VA call back after hour thing VA did call me back right on time but said their computers were down....haven't tried that again since......too frustrating

I am filing the NOD and also reminding the VA that my CUE request was filed months ago and also I am asking them for a NOD extension based on this part of M21-1MR.below.

If the extension request is denied, I can appeal that to the BVA but I did make the point that the NOD I am sending is timely yet their legally erroneous statement in the decision must be corrected before I can fully attain my rights as a claimant, to properly state my disagreement notice, and I believe that is a situation involving “good cause”. Good Cause is a legal term I am familiar with ,however the reg does not define it so I guess this is a VA case by case decision.

"d. Handling a Time Limit Extension Request

An appellant may request an extension of the time limit for filing an NOD.

In this situation, the time limit may be extended if the appellant shows good cause. 38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.

An appellant may appeal a denial of a request for a time limit extension to BVA."

Source : M21-1MR Part 1, Chapter 5, Section B, under 4 (d).

The erroneous legal statement in the award letter is

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993.”

That is wrong based on all evidence (medical and legal etc) established and in VA's possession at the time of the veteran's death.

I told them exactly why they were wrong in the NOD and referred to my exhibits, many from the VA itself.

The veteran was 100% P & T from the 1151 CVA that VA caused and that contributed to my husband's death (and admitted to that long ago) from the day of the stroke until the day of his death and they owe me some more cash.

I think I might as well copy again all of my exhibits ,only 13 -some 2-3 pages-

and re send the CUE request as well.

I am mentioning this here because I know of no one who ever asked for a NOD deadline to be extended.

I don't care at all if they extend it or not.I just want to see how VA handles this type of request and how they might define "good cause".

I would certainly think a vet who is hospitalized when his/her NOD deadline comes up, and has no vet rep who could prepare the NOD for him/her and get it to VA in timely fashion, would have good cause for a NOD time extension but VA does not think like I do.

Edited January 4, 2013 by Berta (see edit history)

[carlie]

Berta,

See if any of these help - but most likely not :- (

http://www.va.gov/vetapp06/Files3/0612762.txt

http://www.va.gov/vetapp09/Files5/0937891.txt

http://www.va.gov/vetapp07/files4/0734940.txt

http://www.va.gov/vetapp00/files2/0019060.txt

[Berta]

These decisions are different from what I meant but they are all VERY interesting Carlie.

I find I used M21-1MR as much as 38 CFR regarding my 2 current claims and my past AO IHD claim.

I have started to shape, last 2-3 years, everything I state on paper to my VARO ,in terms that the BVA will get. I am not depending on my RO anymore.Their 8 years of farting around with my 2004 CUE claim was ludicrous and obviously just one big stall. At least the Nehmer VARO could read.

[bluenote]

Berta,

I am currently working on a case where the application of 38 C.F.R. 3.109(b) will be an issue going forward (long story involving accredited agent who managed to request an extension but never filed a NOD). There was a BVA decision that analyzed this provision in 2008. The BVA cited examples such as mental illness and incapacitation as "good cause". The decision can be accessed http://www.va.gov/vetapp08/Files1/0805945.txt The BVA considered the claimant's request under the three-part test established in McCreary v. Nicholson, 19 Vet. App. 324 (2005) for analyzing equitable tolling for late filing of an NOA. While non-precedential, the BVA's analysis is consistent with other areas of law addressing good cause for late filing.

Good luck

Seth Director

[Berta]

Very interesting case. THANKS

Of course the BVA was correct in that decision.

My NOD will be timely.

I too am sending that reg (38 C.F.R. 3.109(b) with my extension request.

I am just attempting to force the VARO to address the CUE issue in the same award I am appealing,that I filed months ago, and I would love to have to appeal any denial on my Extension request,to the BVA.(as I stated in my NOD I would promptly do.) The CUE statement , as to the 100% that I posted yesterday,is the only statement I disagreed with.

The award caused me to file a separate new Section 1151 claim too but that is another story.

The Award letter I received last year contains a CUE that must be corrected before my full appeal rights can kick in, in regards to filing a proper NOD.How does one file a NOD on anything that contains an obvious legal error......they do it by raising the CUE issue first, as I ad to do last December..... to get their denial reversed and get the award in Jan 2012....

I am just pushing the regs to the limit, as a legal flank attack ,in addition to filing a timely and fully probative NOD.

Vet reps can be sued in state courts for negligence if their actions cause a claimant to lose any monetary VA benefit.

A vet (I posted this here years ago) found that his vet rep didn't file his TDIU form for him when he thought the rep did.

His TDIU award had the wrong EED because of that.

He sued the rep and won the proper retro TDIU amount . The rep had to pay it as damages.

Edited January 5, 2013 by Berta (see edit history)

[carlie]

If the extension request is denied, I can appeal that to the BVA but I did make the point that the NOD I am sending is timely yet their legally erroneous statement in the decision must be corrected before I can fully attain my rights as a claimant, to properly state my disagreement notice, and I believe that is a situation involving “good cause”. Good Cause is a legal term I am familiar with ,however the reg does not define it so I guess this is a VA case by case decision.

"d. Handling a Time Limit Extension Request

An appellant may request an extension of the time limit for filing an NOD.

In this situation, the time limit may be extended if the appellant shows good cause. 38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.

An appellant may appeal a denial of a request for a time limit extension to BVA."

Source : M21-1MR Part 1, Chapter 5, Section B, under 4 (d).

The erroneous legal statement in the award letter is

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993.”

That is wrong based on all evidence (medical and legal etc) established and in VA's possession at the time of the veteran's death.

I told them exactly why they were wrong in the NOD and referred to my exhibits, many from the VA itself.

The veteran was 100% P & T from the 1151 CVA that VA caused and that contributed to my husband's death (and admitted to that long ago) from the day of the stroke until the day of his death and they owe me some more cash.

I think I might as well copy again all of my exhibits ,only 13 -some 2-3 pages-

and re send the CUE request as well.

I am mentioning this here because I know of no one who ever asked for a NOD deadline to be extended.

I don't care at all if they extend it or not.I just want to see how VA handles this type of request and how they might define "good cause".

Berta,

This pertains to legal representation but has a blip on good cause.

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=a416c63f5c1c249456f9355ac5d5bd3b&rgn=div8&view=text&node=38:2.0.1.1.5.14.35.5&idno=38

(b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence —(1)

General rule. Subject to the exception in paragraph (b)(2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans' Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on the motion, action will be taken as follows:

(i) Good cause not shown. If good cause is not shown, the request for a change in representation, the request for a personal hearing, or the additional evidence submitted will be referred to the agency of original jurisdiction upon completion of the Board's action on the pending appeal without action by the Board concerning the request or additional evidence. Any personal hearing granted as a result of a request so referred or any additional evidence so referred may be treated by that agency as the basis for a reopened claim, if appropriate. If the Board denied a benefit sought in the pending appeal and any evidence so referred which was received prior to the date of the Board's decision, or testimony presented at a hearing resulting from a request for a hearing so referred, together with the evidence already of record, is subsequently found to be the basis of an allowance of that benefit, the effective date of the award will be the same as if the benefit had been granted by the Board as a result of the appeal which was pending at the time that the hearing request or additional evidence was received.

(ii) Good cause shown. If good cause is shown, the request for a change in representation or for a personal hearing will be honored. Any pertinent evidence submitted by the appellant or representative will be accepted, subject to the requirements of paragraph (d) of this section if a simultaneously contested claim is involved.

(2) Exception. The motion described in paragraph (b)(1) of this section is not required to submit evidence in response to a notice described in § 20.903 of this chapter.

© Consideration of additional evidence by the Board or by the agency of original jurisdiction. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a § 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues.