Hand Delivering Nod-Take Everything?

[kate7772]

We are hand delivering my husband's NOD to VA regional tomorrow. Should we include all IMO's, private medical records and pertinent literature with the NOD or wait until a later date to send it in?

Thanks,

Kate

[Gastone]

Kate7772: I trust you got your NOD filed. You mentioned in your 1st post regarding the affect of your NOD filing on your pending "reconsideration Request." I have never used "Reconsideration" and hopefully your experience with it could help other Vets decide if it's right for them. If you could share your experiences regarding the "Reconsideration Request" we might all learn something.

1. Did you request it or did You use a VSO? 2. How long after the Denial Letter before you requested reconsideration of the decision? 3. Have you received any acknowledgement or correspondence from the VA regarding the Request for Consideration? 4. Did you supply any "New Evidence" that wasn't available for review prior to the Denial Decision Date? 5. Have you been able to track the status of your request?

Thank you for any and all information you can provide. Vets learn from the experiences of other Vets.

Semper Fi

Gastone

[FormerMember]

There seems to be a gross misconception of the term ''reconsideration". You will not find the term used anywhere except at the BVA when referencing a denial of a BVA decision on your claim. You have the right to petition for a "Motion for Reconsideration" and have your decision reviewed for legal sufficiency. It puts a Notice of Appeal on hold and tolls the 120-day filing requirement to the CAVC. If the BVA declines the Motion for Reconsideration or, on the off chance they reconsider it and still come down with a new denial, you may then proceed to the CAVC with a timely filing of your Notice of Appeal (NOA).

To correct BroncoVet, there is no RBA or Record Before the Agency until you arrive at the CAVC. The RBA is just that-a compendium of all the adjudicative actions that occurred at the VARO and the BVA. It is, quite simply, your c-file sloppily assembled and shipped to DC with the Form 8 certifying the appeal for docketing. The CAVC refers to this as the Record on Appeal or ROA so there is some confusion on a Veterans' part as to which document is which.

As Carlie has aptly explained, a Motion for Reconsideration at the lower levels (BVA and AOJ) could probably best be characterized as a burning desire by your SO to have a RVSR review his decision and perhaps change it based on some gross error. These situations occur when a VSO Service Officer approaches the RVSR and asks for a 'do-over'. This rarely happens unless a major CUE error is apparent. I had a guy who was denied in Texas on HCV. They proclaimed that his six STD infections were willful misconduct. His SO went in and pointed out the clear interpretation of 3.301 ( c ) (1) and the matter was resolved- albeit in 4 months. This could be the closet thing you will ever see that you could characterize as a Motion for Reconsideration.

If the request for this 'administrative review' exceeds one year from denial with no appreciable action in the interim-poof. There goes your right to file a timely NOD. You have one (1) (uno) (nung) year to do so. No ifs, ands or buts. VA is not flexible on this. Examine the theory. You file. They deny in 85% of cases as is their wont. No surprise there. Most would like to believe a DRO review will change the outcome but lacking any definitive N&M E that is exculpatory, your DRO review will fall as flat as an egg-free souffle. I advocate that the new paradigm at the VA points to this avenue (DRO Review) as a dead end. Unless or until VA starts hiring in earnest with qualified personnel, the DRO path is a slow boat around the Horn of Africa.

The reasons are many and varied. First, there is a major dearth of DROs. They are leaving in droves because they are being brow-beaten by VSCMs to produce beyond their capabilities. Training and promotion is stilted and many in the AFGE union demand local promotions rather than "bringing in a shipper" as they say in horse racing. Unfortunately, there are not enough qualified personnel to promote up to this level (GS-13-14)Just as they begin in earnest, they get dragged off to deal with the major influx of new AO claims that required instant adjudication. Oakland RO is 685 days out on a DRO review with a request for hearing. Six Hundred eighty five DAYS. I'll let that sink in. You could just as easily file for a traditional appeal path, sign a Waiver of Review in the first instance, take it to DC and probably get a more nuanced and superior adjudication using 38 CFR rather than the hodgepodge of crap in the M21. Your odds of winning also go up 22% and it will occur sooner. That's a win-win if you are having trouble paying the rent.

As such, the 'Motion for Reconsideration' at the AOJ level is a chimera. If you decide to go to the RO in person to file the NOD, by all means refile all your evidence. There is no law saying you cannot. Given VA's (and to a great degree the major VSOs) propensity to lose things, you will guarantee it's all in the c-file even if duplicated. Considering how dense and myopic they are, that might be to your advantage. I gave my all-important nexus letter from my doctor to the MOPH rep to file for me. It evaporated into thin air. I discovered they didn't have all my medrecs from the civvie doctors. I hand-carried them in, too. Years later when I finally got my c-file- voila! Two sets of civvie medrecs. VA will blindly file anything you give them like a squirrel caching nuts for winter. It makes no difference if they are duplicates. The important thing is to have them in there when (and if) you do go to the CAVC. The RBA at that point is sealed and nothing is allowed in afterwards except for generalized "findings' or a mutually acceptible document both sides agree illuminates or defines the situation better. It still requires the acquiescence of the Judge/panel who is hearing it.

Evidence is king in this business. Absence of evidence is your downfall. Always err to the positive. VA is asinine but they are anally retentive. If you depend on a VSO to do this without supervision, you will inevitably lose or be shortchanged. It's not that they are uncaring or indifferent. They just have no legal training. They get 40 hrs of Blah-blah and sign the register saying they attended. No test for assimilation of knowledge is given. Every year they get a refresher that essentially does the same thing. You can sleep through these things and still be a SO. Notice I didn't say "successful SO".

If you are denied, you have a delicious option. Promptly appear at your RO as soon after you receive your denial. We're talking the next day or so after. Ask to speak with someone knowledgeable. Do not call in advance or try to set up an appointment. I doubt you'd get far with the dolts on the 800 Dial-a-Prayer anyway. All they can see nowadays is the eBenefits screen-exactly as you do. This face-to-face will be a de facto 'hearing'' where you can introduce some salient point or evidence that was overlooked. It's usually after one of these you discover your SO didn't deliver evidence crucial to your claim or VA overlooked it. It will prompt an instant 'administrative review' to ascertain your contentions and will stand a far better chance of correcting an error early on rather than sitting around for years waiting for that DRO dream decision I hear everyone talk about here.

This is just my opinion. I submitted reams of evidence over and over and well-reasoned legal theories over six year to no avail. The DRO didn't address them. The VLJ in DC did not address them. Suddenly, five minutes before showtime at the scheduled CAVC hearing, a flustered gal from the OGC ran up and said "Hold the phone. Alex is right. We stepped on our necktie. How's about we go back and give him what he asked for and quit pestering Judge Schoelen?"

Remember the formula. 15% win at the RO. 22% more prevail at the BVA. 65% get a do over with a high degree of success at the CAVC so that's why you build your case to be bulletproof below and eventually prevail above. It's sad but VA appears to have a quota system. There are just so many 100% slots open. Check it out. See the attached on Vet statistics. The numbers are static on 100%/TDIU ratings for the last 12 years in spite of the fact that a lot of guys are coming home missing large parts of their bodies. You almost have to wait for some in front of you to die to prevail.

Always remember the Common Law Mailbox Rule is the only thing that guarantees your evidence is safe. VA can, will and often utilizes the Presumption or Regularity to deny you. As Vets well know, anytime Exlax enters the conversation, the defecation is going to contact the rotary oscillator.

Clear Prop. Clear Six.

comp_vets_state_09 (2).xls

Edited September 12, 2014 by asknod

[63SIERRA]

According to the M21. When a veteran files a Nod. The raters are supposed to do a detailed review of the denial and see if theres any way that they messed it up and see if theres a way to award the claim according to the regulations before writing a statement of the case and sending the form nine to go to BVA. I bet though, that they dont do it. They just set the file to the side, to have someone go thru it that is handy at " creative writing " to try and write up a story that they hope the veteran will accept and just give up. I wonder how many claims are not given this second look by the RO that could be CUE claims. It would be interesting to request a statement from the RO asking what position it was such as service center manager, assistant manager ect that reviewed the case after your NOD. I bet they would not respond, because they arent reviewing them after a denial. They just set them aside and hope you fold tent and head to the overpass.

[kate7772]

We filed the NOD yesterday in person at the Cleveland regional office. Got it date stamped. It was a strange day. Planned to leave home about 9 am for the one hour plus drive. Due to a lot of delays, didn't get to Cleveland until about 2pm.

We wanted to visit DAV first to see if the NOD needed tweaked. Mistakenly went into the regional office while attempting to find DAV. They gave us directions to the DAV office but said they were closed on Thurs. afternoon. We were very disappointed to not be able to speak with DAV first but decided to go ahead and file anyway. A gentleman walked by at that time and asked us to come into his office. He first suggested we file a reopen/reconsideration but when he realized the date, said that would not work. Said he was just hoping to help us avoid the 3-5 year wait.

Anyway, he logged into the computer to check on my husband's claim. C&Ps were ordered on July 7 and still not scheduled. He said that isn't right and said he would send an email to the person who ordered them to find out why it is taking so long.

These are for the current reconsideration we have in. This is for PTSD and hearing/tinnitus. We decided not to file a NOD on the tinnitus/hearing and the PTSD was listed as a new claim although it was originally filed as irritability, nervousness, anxiety. The PTSD was not actually diagnosed until Jan. 2014, after the original claim was denied. Not sure they would have gone back and connected the two anyway and we decided the long wait of an appeal was not worth it to find out. So, we will let the " new" PTSD claim play out. I know we are possibly giving up some retro but my husband is 68 and I want him to enjoy this time and if he can possibly get service connected for the current PTSD claim, there will be a lot less stress. There were some references in the computer to the fact that VA is conceding the stressor and also the fact that he was subjected to noises despite his MOS not being gunnery or anything of that sort.

We filed the NOD on kidney disease which is a Camp Lejeune water issue. We never included it in the reconsideration due to waiting on an IMO. I feel we have some good supportive evidence in the NOD.

In answer to someone's questions: We did have good new and material evidence we submitted with the reconsideration and apparently VA agrees since they are requesting the C&Ps and made several statements in the computer notes that sound positive. We will see.

I wish we had filed the reconsideration earlier but were originally planning to include the kidney disease, so waited a while before deciding we were not getting the kidney evidence fast enough. Reconsideration was filed in May, about 9 months after the original denial. We knew with the time frame, it was a crap shoot.

Anyway, maybe it was a blessing that we got delayed yesterday. I really feel like the VA guy was trying to help and maybe his email will get them moving. Wish we were out of Cleveland because then he would likely know the person who ordered the C&Ps but since the kidney disease is Camp Lejeune, all my husbands current claims are in Louisville.

One of the other VA workers said "you guys must be important, that guy is the big boss". I guess all things worked as they should. Hopefully.

Kate

Edited September 12, 2014 by kate7772

[carlie]

Kate,

Sounds like it went well.

[Fat]

I WISH YOU LUCK..................

Carefully read the denial letter and refute the portions of denial with good medical information, buddy letters, etc.

"NEVER GIVE UP"