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

[Navy04]

Sorry to hear of the trouble bud. God bless and good luck

[TiredCoastie]

Sorry to hear of the trouble bud. God bless and good luck

Thanks, Brother. Glad you got your 100% and SSD. All in God's timing...

[Berta]

I agree with Chuck....CUE ...violation of 38 CFR 4,1 , et al,.to specifically include violation of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al.

See my frontal attack on this basis here:




The specific CUE claim and my other claim were verified as received by VA last year and months ago I was told the CUE above was with a specialist....

maybe that is the job description of the MF employed by my VARO who I know well---

MF Mysterious force who always loses, hides, or destroys my evidence.

Both of those claims are suddenly GONE.I was told I only have a DIC claim pending.

I have been getting DIC for 20 years.I dont have a DIC claim pending.

I get one DIC check a month but have three separate DIC award bases.

Whose gonna get the DIC money....the evidence for each basis is there.

I rattled this all off to the IG (with a separate complaint) because I feel VA is padding the backlog books like this......

Dont accept timely NODs, lose or destroy pending claims,and/ or ignore new claims completely, then work on a claim that already was awarded, to waste the taxpayers money, ------do that at every VARO and the Directors will get a big bonus for reducing their ROs backlog.

In any event I am pressuring them to find those claims because CUE means cash, when the claim is legally valid.

You can also file an IRIS complaint as well..... write it in a word program first to make it short and to the point, but use some command presense and tell them they violated the above regulation.

That might gets some thumbs out of butts at your RO...worked for me...a few times

This crap is ridiculous .

Edited May 17, 2014 by Berta

[Berta]

And you can support the IRIS or the CUE with anything in M21-1MR regarding NODs , that might help:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart1%2Fch05%2Fch05_secb.doc&ei=2rh3U-3PE4ufqAaU7ICYDw&usg=AFQjCNHmBnjsJS27PpcVGLz20YsO8wgZnQ&bvm=bv.66917471,d.b2k

[ArNG11]

Hah VA regional office is funny. I am glad I sent my NOD in triplicate. I got one of my NOD's returned in the mail today, the one I sent through regular mail. Funny though, they accepted my registered return receipt though, and my fax showed sent successfully. Hmm, very curious.

[TiredCoastie]

Thanks for the confirmation, Berta. I wrote the RO a letter describing how they made two major errors...misidentifying the form and missing the obvious postmark along with copies of the NOD and the mailing receipts including the postmark on the certified mail receipt showing it on time. In my letter, I told them their two decisions were in error, but I did not use the specific term "clear and unmistakable error." The letter was just received, so there's been no time for them to process it through the mail room much less respond. I'd rather they just relook at the form, the postmark, and start processing the NOD rather than call a CUE and have to go through the process of fixing this decision before deciding they'll look at the NOD.

Makes me encouraged, though, because it makes me think I must have a solid argument for an increase if someone will go to such lengths to throw up a road block.

Meanwhile, you mentioned that you wrote the IG. Do you think that would help my case? I think I ought to wait and see if and when I get a response to my letter and NOD.

Edited May 19, 2014 by TiredCoastie