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

[Slowlane]

I believe you are being treated unfairly.

I also believed the VA Duty to assist actually existed.

[ArNG11]

Tiredcoastie, although you have that appointment to see your c file, make sure you make known if you see there are missing documents or documents that are not yours in your file. Also under the Freedom of information Act, you can get a complete and correct copy of your c file once free of charge, however, this must be done in writting. There are samples on this site of the letter you can use, if you can't find it let me know and I'll send you or post a copy on here.

[TiredCoastie]

Tiredcoastie, although you have that appointment to see your c file, make sure you make known if you see there are missing documents or documents that are not yours in your file. Also under the Freedom of information Act, you can get a complete and correct copy of your c file once free of charge, however, this must be done in writting. There are samples on this site of the letter you can use, if you can't find it let me know and I'll send you or post a copy on here.

That's outstanding advice! Back when I had a VSO, they submitted a request for me to get a copy of my c-file in November of last year. Like so many other things that the VSO tried to help me with, the copy of my c-file didn't come through either. However, maybe I'll dig up the copy of the memo they sent and reforward it asking for the status of my request.

Meanwhile, how should I communicate that there are missing document or documents that are not mine? Should I write that in a letter to the RO officially putting them on notice? Can't imagine that a verbal will do much good, especially if it comes down to a he-said, she-said at a hearing. Is there a best way to go about that?

Edited May 15, 2014 by TiredCoastie

[ArNG11]

Verbal would not be good, as there would be no proof of the call that they would provide you with. He said she said line. I can't quote the reg off hand as I'm not at home but, there are problems with other vets records being in your file along with your missing records, those could have been the deal breaker on your claim, of course proving that would be a booger. It has to be detrimental to your claim that had those records been there or not been there would have changed the outcome of your claim.

[free_spirit_etc]

.., 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.

.

In addition to this, you can send a message through IRIS that reports what you sent --

On ___, I sent the following by certified mail receipt XXXXXXXXX

1. My Notice of Disagreement to _____ dated ____.

2. A copy of _____ (2 pages)

3. A copy of ____ (1 page)

That way, if they deny getting something, you have another record of what was sent (and more importantly, a record that you told them at the time)

[ArNG11]

Free spirit that's a hell of a good idea, didn't even think about that. IRIS! Hmm learn something new. Thanks.