Question For An Expert In Va Rules

[SubicBay0311]

Background

Claim denied September 2013

Claim reopened December 2013 with overwhelming new positive evidence

The one year deadline in approaching and I have no guarantee that the claim will be decided by the September deadline for filing a NOD. I was told that once a NOD if filed, all rating activity stops, and goes to the DRO route.

So I will have to make a decision in late August whether or not to file the NOD and protect my date of claim. This would of course cause a delay in the rating of the claim (by DRO) by nearly a year. Or, I could take a chance that the claim is rated say in October and granted. But if denied, I will have lost the effective date and a lot of retro, even if I can get it reopened or appeal that decision.

Please correct me if any of this is incorrect….

So getting to my question. Say I file a NOD, and they are required to formulate and send me a “statement of case” , which I assume is a well developed statement of their reason for the denial in Sept. 2013. Would they be obligated to review the new evidence that has been submitted regarding the claim prior to creating this SOC? If so, and if it is obvious the claim can now be granted, how would they proceed? Would they grant the claim, or just send it on to the DRO to consider many months later?

Any thoughts would be greatly appreciated.

[FormerMember]

You filed a FDC or Fully Developed Claim. They have a policy of denying virtually all but the obvious claims so do not lament. Since your claim was denied in Sept. 2013, it is still alive. There was no need to "reopen it". Sounds to me like you may have an inept VSO gomer doing this. Here's the drill. You've submitted new and material evidence. If they have not ruled on it and "redenied you" by September 2014, then you have to file a NOD. If you do, make sure you include the "overwhelming positive new evidence" you described with the NOD. It must be new in that it has never been submitted to VA before and it must be material or in some way be pertinent or instrumental in the the approval of the claim. A word to the wise. Mail it in certified with return receipt requested. Do not file it on eBenifits. We are getting hundreds of reports of denials where the electronically submitted records never made it into the file before adjudication. Coincidence? Who knows? Eliminate the risk.

I suspect you have not reopened your claim. You have merely submitted new and material evidence into the same original claim stream. As such, if VA fails to make any kind of decision soon, you are best advised to get with it on the NOD. A DRO review is merely a 585 day in-basket at most ROs right now. If you lose there, you get in the BVA line for about another three years. Assuming you have this nailed to the wall with the evidence, you'd be better served heading east to DC pronto. The line for a traditional review process on your appeal is getting longer by the minute as Vets recognize they will be fiddling around waiting for a BVA docket as long or longer than a DRO review. VA is woefully short of DROs right now. Since they prefer to hire from within, and there aren't enough RVSRs with time in rank to qualify, the whole DRO review process has slowed to a crawl. Much like an overwhelmed FEMA shelter in a hurricane that's full, they are "brokering out" our claims to other Regional Offices- further slowing the process down. Baltimore was sending them to Detroit last fall who was overwhelmed, Go figure. It's like musical chairs.

[PainterBK]

What a sad state of affairs. The news just keeps getting worse.

Bob K

[vern2]

Oh crap, my claim has been at DRO stage since Oct 13. Get back on hamster wheel!

[FormerMember]

I got the bad news on the DRO shortage from some raters in the Columbia, SC RO about three months ago. It still hasn't improved yet. They're AFGE and have been blowing an ass gasket with the CO. They just want to do their job but can't due to the lack of personnel authorized to do the reviews. Vermin Ave.'s response is "We're working on it."

a

Clear Prop

[SubicBay0311]

Thank you for your thoughtful response ASKNOD.

But if my primary goal is to get service connected as soon as possible, even if it means giving up big chunks of retro, would it not be better to continue to submit evidence to the RO until it is rated properly? Is there any assurance that a DRO would actually acknowledge the evidence any more than general rating activity?

[TiredCoastie]

Background

Claim denied September 2013

Claim reopened December 2013 with overwhelming new positive evidence

The one year deadline in approaching and I have no guarantee that the claim will be decided by the September deadline for filing a NOD. I was told that once a NOD if filed, all rating activity stops, and goes to the DRO route.

So I will have to make a decision in late August whether or not to file the NOD and protect my date of claim. This would of course cause a delay in the rating of the claim (by DRO) by nearly a year. Or, I could take a chance that the claim is rated say in October and granted. But if denied, I will have lost the effective date and a lot of retro, even if I can get it reopened or appeal that decision.

Please correct me if any of this is incorrect….

So getting to my question. Say I file a NOD, and they are required to formulate and send me a “statement of case” , which I assume is a well developed statement of their reason for the denial in Sept. 2013. Would they be obligated to review the new evidence that has been submitted regarding the claim prior to creating this SOC? If so, and if it is obvious the claim can now be granted, how would they proceed? Would they grant the claim, or just send it on to the DRO to consider many months later?

Any thoughts would be greatly appreciated.

Same thing happened to me, and AskNod was one of the folks who have helped me get this thing at least aimed in the right direction. I followed the advice he gave you and am now in the waiting mode.

Basically, my claim was denied in Dec 2012. My VSO said the best way to fix the bad decision was to run a "request for reconsideration" claim. (This is before I found hadit, just so you know.) The NSO said that the claim would be decided way before any appeal, at least some of what was wrong would get fixed, and we'd have to appeal the rest. I trusted him, and I believe he meant well. He sent me out for new DBQs from my doctors, which I dutifully brought back with enhanced diagnoses, more evidence, etc.

The trouble began when nothing happened with the second claim. It became more and more obvious that the VA was not going to complete claim processing on the reconsideration until after the year went past from the Dec 2012 decision. The VSO assured me there was no problem. By now I'm an avid reader of hadit and don't believe much they're telling me. I fired the VSO then filed a NOD just in time to save the original claim date (and it took six months for the RO to acknowledge that I submitted a NOD AND it was submitted on time, but that's a different story). One of the last things the VSO told me was that they never think appealing is the right answer. (Note the contradiction from what I was advised back when I submitted this new claim.)

Meanwhile, the RO farmed out the claim in early March 2013 to a different RO who made a decision within a week. I did not find that the claim slowed down at all by the submission of the NOD, and the RO was well aware I was asking about the appeal while they were processing the claim - but they didn't acknowledge and begin processing the NOD until after the claim was decided anyway. One of my contentions was granted, one was lowballed, and several were denied again. Thank God I appealed when I did. The new decision was more than two months past the year deadline to appeal. So I just submitted a NOD on this latest decision as well and expect at some point they'll get combined somewhere down stream.

Things are not progressed far enough for me to know what the SOC of the original appeal will look like, seeing as I haven't gotten one yet, but I suspect it will mirror the decision on the reconsideration claim.

One of the things they did in the latest claim decision was to assign the effective date as the date the new and material evidence was signed by the doctor, not when the original claim was submitted. 38 CFR 3.156(b) applies and you'll want to be ready to appeal any effective date mishap using this cite.

Having lived this and not had the benefit of folks like AskNod, Berta, Carly, John, and the rest of the elders here when it started, I would never go this route again but would appeal right up front. Like AskNod wrote, you get the benefit of getting another full review of your C-file and any new and material evidence with the potential for getting your contentions granted while being lined up to getting to BVA who will hopefully make things right or more right. The other option is to submit new and material evidence on the old claim WITHOUT filing a new one, but a NOD preserves the ability to get above the RO if they can't or won't get it right. Sooner or later you'll find yourself having to appeal. Might as well save the trouble and get in line soonest, like AskNod says.