My Nod Was Rejected!

[TiredCoastie]

Really need some validation that I've got the right approach on my response...

I just got a letter from the RO stating that my NOD was rejected. The letter claimed I used VA Form 21-4138 "Statement in Support of Claim" rather than VA Form 21 0958 "Notice of Disagreement" and that it was received beyond the one year deadline from the date the claim closed/decision letter mailed.

Double checked and sure enough, I used the right form and have ample proof that I got it postmarked prior to the deadline thanks to all the advice to send everything certified mail/return receipt requested. 38 CFR §20.302(a) states, “The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.” In fact, thanks an earlier IRIS discussion, I resubmitted my NOD and the proof of timely filing back in March.

I'm responding by letter and will resend a copy of the NOD along with the proof of timely filing. Just wanted to double check that I'm not off my rocker here...

Could the RO have decided that since my NOD was "late" so it became a "Statement in Support of Claim" rather than my appeal? Am I reading 38 CFR §20.302(a) correctly that it's the date it was postmarked, not the date the RO decided it was received?

Edited May 14, 2014 by TiredCoastie

[Chuck75]

I believe you now have a clear "CUE", in that the VA failed to follow the law, assuming that the claim is valid, and so forth.

Re-file the NOD stating the details of the refusal, and with copies of the mailing dates, etc.

If that fails, I'd likely find a veteran's lawyer.

There is a procedure that involves sending a letter every month, requesting a reply, etc.

When, after several no reply's occurs, a "Writ of Mandamus" process might be appropriate

as a last resort. I'd, again suggest legal help.

[free_spirit_etc]

Yes. As long as it is postmarked by the date it is due, it is timely. But if you are cutting it close on time, they seem to like to tell you that it was received after the deadline. You shouldn't have to tell them what the law is, but you often do have to tell them. I had an NOD considered "untimely"for the same reason. I filed an NOD over my NOD being considered untimely.

"3. I disagree with the fact the VA used the date my Notice of Disagreement was stamped in their mail room (November 26, 2012) as the date of filing, rather than the date of mailing as designated in Title 38: 20.305, Computation of time limit for filing, which states:

“(a) Acceptance of postmark date. When these Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed…”

....

Title 38: 20.305 - Rule 305. Computation of time limit for filing, further states:

“(a) “… In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded.”

[Notorious Kelly]

Sorry you're getting the runaround from a group that was allegedly formed to assist veterans.

If they're local I'd go to the VARO in person and make an appointment to see your file to make a copy of the form in question.

[Philip Rogers]

Yup, they're screwin' with ya! They do it all the time, and for a vet who doesn't know, s/he gives up. Free Spirit posted correctly. Follow those instructions.

pr

[ArNG11]

I call a bunch of BS. Per the CFR you do not have to use the NOD form. Simply a statement on some crap paper if you'd like stating your disagreement with the decision the VA has made in your case can suffice. "Notice of Disagreement " (NOD). There is no official NOD form. Generally, the NOD can be a written statement on VA Form 21-4138 (Statement in Support of Claim) or a letter that states that you disagree with the decision.

You can use the form 21-0958, but you are not forced to. In my case I did use the form, along with a 21-4138, and 22 pages of evidence they, the wonderous decision makers at the VA, chose to ignore in my claim. Just be sure you are straight forward and be as direct as possible for what your asking for, cite the regs, and evidence, send only copies of your evidence, and be sure you send it registered mail, return receipt requested. I myself make a copy of everything I send them. I have a file that I keep just for them with all the correspondence I have sent them. It is best to CYA in everything you do with your dealings with the VA.

As many on here will confirm they are playing games with you. At least they are going to try. Wise up and make them shut up to do what it right. By the regs and by the law.

[TiredCoastie]

Wow, thanks so much! I really appreciate the CFR section about postmarks, Free Spirit, and the advice from all to keep after 'em. I think I will respond by letter, probably today, and include all kinds of proof. And making an appointment to see the C-file and whatever's grown in there seems like an outstanding idea!