tdiu Wondering If This Has Happened To Anyone Else Lately

[Shyne-I]

Hello All,

I am wondering if anyone has received a letter from their RO lately stated that your appeal period has expired and in reality it has not??!!

Just a little background for those who don't know my struggle...

I filed an original claim for Fibromyalgia, Depression secondary to Fibromyalgia, and individual unemployability on July 11, 2012. I received my denial on April 11, 2013. I submitted new and material medical records that I was just recently able to get a hold of from the years 1997 to 2004 to show continued symptomatology to prove "continuity" for service connection. I submitted a NOD around the same time because I disagreed with the VA examiner's rationale on my C&P exam for Fibromyalgia. From there I asked for a DRO review and requested to be present for a informal hearing. Well....I was once again denied by the DRO without even having the informal hearing. I finally sought out help from the TVC because I was never able to find an AMVETS rep in my area; we filed the Form 9 on November 11,2013. Fast forward to today...I received a letter from the Waco RO stated that:

" You were previously denied service connection for fibromyalgia. You were notified of the decision on April 11, 2013. The appeal period for that decision has expired and the decision is now final. In order for us to reopen your claim, we need new and material evidence. Your claim was previously denied because the evidence does not show an event, disease, or injury in service. Therefor, the evidence you submit must be new and relate to this fact."

My appeal period shouldn't expire until April 2014!! What is going on here?? I'm at a loss, my VSO says that this has been happening a lot lately and just come in and we will submit a statement. Does anyone have a clue of what is going on?

Shyne-I

[john999]

The thing I learned about traveling BVA boards is that they are little more than in-take sessions. The judge get the basic facts of the case and any brief you may have written up at the hearing. Then the case is sent off to underlings to do the actual legal work and come up with some kind of decision. This takes another six months. My traveling board took all of 15 minutes and I had a lawyer. The judge just scanned my lawyer's brief and mentioned he was not used to dealing with lawyers. He asked my lawyer a couple of questions and that was it. Then we waited for about six months and got a denial and off to CAVC.

John

[63SIERRA]

not used to dealing with lawyers, ?? I thought you had to be a lawyer before you could become a judge.. funny

I would have said, ditto, im not used to dealing with judges, with a smile and chuckle. ha

Edited January 2, 2014 by 63SIERRA

[carlie]

Thank you Carlie for answering that question for me. I will definitely withdraw the request for the DRO hearing once I get before the BVA!! I already have two binders put together with all of my evidence and correspondence with the RO (tabbed by contentions, and dates)!! Thank you everyone for the responses.

Shyne-I

Shyne,

I'm a real stickler for verbiage. Seems like no mater how many times claimant or the VA

wants to refer to claim things as "contentions", in my book these are mostly claim issues.

A claimant contends XYZ

and in my way of thinking it's more like:

Example

Contention X =

SC for a health condition, with sub issues (downstream)

of evaluation for percentage level and effective date.

Contention Y =

SC for Right shoulder DDD/DJD, with sub issues (downstream)

of evaluation for percentage level and effective date.

Contention Z =

SC under secondary for Gerd, due to medications to treat Right shoulder,

with sub issues (downstream)

of evaluation for percentage level and effective date.

Contained within the contentions of XYZ above are actually

9 issues.

I feel it is of great importance to address all the issues separately, yet at one time,

like above.

Another thing is to try and ascertain EXACTLY WHAT ISSUES the BVA has jurisdiction

to address at this hearing you will be attending.

Those are what you need to try and focus on at the hearing.

An issue that BVA does not have jurisdiction over, will be remanded back to your

VARO with some type of instruction for action.

I am NOT trying to imply that a remand is a BAD thing, it is actually good in that,

it is not an out and out denial and usually provides for more work to be done.

I will write more later on this - if you feel it might be helpful for you.

jmho

[Shyne-I]

Something don't smell right here(just like the grammar).

The claim was filed in 2012, decision in 2013, NOD April 2013 a DRO decision, Form 9 in November 2013, and a travel board hearing in May 2014. At least your stuff is moving/being worked!

Your form 9 was most likely still being processed by the mailroom when they decided your appeal was closed due to lack of repsonse. How the VA can set a 60 day time limit on receipt of a form when the majority of their RO's are incapable of processing mail within 90 days amazes me.

No one has a right to an informal conference, informal conferences are at the discretion of the DRO. My VARO tried to tell me I couldn't request one, I showed them in writting that I could. They accepted the request took about a year and a half for them to tell me they didn't want to give me one. They are REQUIRED to give a formal hearing if you request one.

I have a form 9 that has been sitting in Detroit for 4 years 3 months still not certified to the BVA. The last action (besides lying in IRIS messages) by my VARO was April 2013 and they are still in you don't have any active appeals mode.

Start prepping now for your May travel board hearing (it will be here before you know it!).

71

Got a call from the IRIS call center and he told me that I had 60 days from the date of my SOC to respond and file the Form 9 and because they received my Form 9 on day 64 is the reason they said the Appeal period had expired! I informed him that I responded to the SOC by submitting New and Material evidence and an outline of why I feel they overlooked pertinent evidence! He then stated that the RO has withdrew my appeal and has reopened my claim because of the N&M evidence! This is getting so sloppy.

Shyne-I

[Shyne-I]

Oh...forgot to mention that he told me the May 14th date is the deadline that the RO has set to have my hearing scheduled by :( not when it will occur.

Shyne-I

[71M10]

Check the typing date on your SOC vs the Mailing date. They have to count from the mailing date. I have had decisions that the mailing date was significantly later than the typed date (longest one 21 days). I keep the envelop that VA mailed the decisions in, that post mark is a definative government issued time stamp. Although I have received mailings with no post mark.

Best regadrs,