No Notification On Closing Claim

[free_spirit_etc]

Does anyone know if the Va not being required to notify you when they close your claim is an actual law - or is it a policy of the VA.

In our case -- we wasted precious time not knowing that my husband's case was closed. We THOUGHT it was going to the Board of Appeals because the last letter from them (August 2004) said Your appeal is being forwarded to the Board of Appeals... and my husband's conversation with the RO (June 2006) STILL led him to believe his case was open...as the RO said they would forward any evidence sent to the Board.

So now - they have confirmed that it was closed --and that his time for appeal had expired.

But what about all that time in between?

Isn't this kind of a due process thing? If they do not notify you they have closed your case -- and you think it is open -- you lose an amazing amount of time.

Good thing we decided to add evidence to his appeal -- or we would still be witting around waiting for his appeal to be heard --while the time ticked away.

Anyway -- does anyone know if this is actually a congressional law (as in they don't have to tell you they closed your case) - or is it just one of their policies?

Free

[free_spirit_etc]

Thanks to everyone --some good information here.

I have been looking for all different angles on this --and seem to keep running into brick walls. It is certainly a maze. Once you think you find an answer - that answer leads to another wall.

Basically --

My husband filed for disability when he retired in 1998. He appealed several of those decisions. And most of them were finally settled. But it looks like he appealed once. Filled out the form and checked a box and stated the conditions he was appealing. His arguments were in his NODs. On the BVA form he just listed the conditions he was appealing. A couple of them bounced back and forth between the BVA and the RO without him doing anything else.

In 2001 he filed a claim for lung cancer. (Was diagnosed in 2000 - but was misinformed as to the type --i.e. slow growing) It was denied in 2003 and he filed an NOD. He did not request a de novo review -- but the Statement of claim said it was a de novo (although it was the same old stuff). He recieved the SOC (psuedo-de novo) in August 2004. It did tell him about appealing. But then a few days later he recieved a letter that stated that his appeal was being sent to the BVA. The letter did not say which appeal -- so - since the only appeal he had filed (by the NOD) since 1999 was the lung cancer -- that was what he thought was sent to the Board.

We had talked several times about his claim - always beleiving that it was sent to the Board. So for two years --he waited for the backlog to get to him.

This June we decided to try to strengthen the case if we could. He called the Board and they said it was not there. So he called the RO - and they informed him that his case was still there - and when he asked if he could add evidence - they said he could send it to them - and they would forward it to the Board with his case. He even asked if they would have to review it before sending it to the Board and they said - NO.

So we sent them a letter re-iterating the conversation - and asked them to hold the appeal for a few weeks to give us time to submit additional evidence.

Then - in August - the Senator's Office that we have talked to told my husband they had been informed his case had been closed.

So we wrote the VA and asked about the status of his claim. If it was opened or closed. When it was closed (if it was) - and why?

We haven't heard back from them on that.

But they did send us a letter telling us that in order to re-open the claim they need new and material evidence that must relate to the reason it was initially denied. And it says that the claim was denied in 2003 and the appeal period had ended -- and the decision was final.

We did get a letter from the Senator in which the VA told HIM that the appeal that was sent to the Board that my husband THOUGHT was the cancer claim was actually a dental claim (he had appealed that one in 1999). I am glad they can keep them all straight - because we sure didn't.

They use all that cut and past crap -- so you don't know what really applies and what doesn't. And 'you appeal for DENTAL" would have been much more clear than "you claim is being sent..." which could lead a reasonable person to think it was the claim they had been actively appealing.....not some long ago yo-yo claim...still bouncing around the VA.

Oh..and they still haven't explained that to US yet - just the senator. And the letter to the senator said his claim had been reopened - and that he was filing for DIRECT service connection.. But the letter to us was the cut and paste -- your claim was denied for... and in order to reopen it....

I have looked at the possibility of filing equitable tolling - in that he was misled into letting a filing deadline to pass -- not sure about that - and it looks like to do that - he would need to file the appeal NOW -- as to not do so would not be filing late - it would be not filing at all. But that deadline really looks like a sacred cow.

And after reading some BVA decisions - it looked like we might be able to argue that his claim for DIRECT service connection was NOT adjudicated - as they failed to address it. They did say his disease wasn't diagnosed until 2000 (retired in 1998) but the regs on postservice inital diagnosis do not preclude granting direct service connection for disease diagnosed after the service.

But the decision we have just been talking about seems to weaken that argument - unless we can file a CUE - in that they failed to acknowledge, address, or adjudicate the direct service connection portion of the claim.

They DID acknowledge it initially ---stating You claim for lung cancer TO INCLUDE as secondary to asbestos exposure has been recieved."

But all the other communication - including both the denial and SOC stated "Lung cancer DUE TO asbestos exposure..."

Even Now - even though we are AGAIN telling them we want to claim for DIRECT SC - they still tell us (copy and paste style) that to be MATERIAL - the new evidence has to relate to asbestos exposure...in order to reopen the claim.

So maybe if we file that it is unadjudicated - they will finally at least acknowledge the CLAIM.

It seems to very much prejudice the case if they fail to even address the in service incurrance.

And there are LOTS of cases in the BVA on cancer diagnosed post service being granted DIRECT SC based on the growth rates of the type of cancer -- which was our position -- so it is not like it is a rare or unusual claim at all.

The duty to assist letter he got back in 2002 just told him what he needed to do to prove asbestos exposure --and did not tell him anything he needed to substantiate in service occurance.

But I also have an issue with the fact they can close your claim and not notify you. I know they cna do that, but was wondering if that was a policy or law. It does seem to deny you some type of due process -- as IF my husband had recieved a letter in 2004 that his case had been closed -- he would have responded immediately - and if nothing else - at least reopened the claim TWO YEARS AGO!

But all the way up through this summer - he was playing the waiting game -

And it seems like even if they don't have to send you a letter and tell you they closed your claim -- when you call and ASK about your claim - the nice thing to do would be to tell you it was closed -- instead of telling you to send the info for them to forward to the Board.

So even the time between the phone call in June and the reciept of our evidence (which may or may not have reopened the claim - depending on who you talk to) on August 2 (we mailed July 31) -- we may have lost.

Free

[john999]

Did you have a service officer? It sounds like you were fed a diet of BS and smoke. You have to ask for a BVA appeal via a Form 9. The VA will not just send your claim to the appeals forum without you asking for it. They often mess up this part by sending your appeal to the wrong body. Like I asked for a DRO and the VA tried to send my claim to the BVA but I caught them before they could do it. Have you ever gotten a copy of you C-File or even seen it? If you don't prod the VA via a NOD and an appeal they do nothing but let the clock run. If you have an SO they should have told you to appeal or notified you of your options. The VA will let your claim die if you do not actively appeal rating decisions. When you file an NOD they are supposed to send you the Form 9.

[free_spirit_etc]

The problem is that we know that NOW -- that apparently he should have filed a Form 9 to "perfect his appeal" But at that time - he took the letter telling him that his appeal was being sent to the Board - as just what it said - that his appeal was being sent to the Board. And the only thing he had appealed within the previous couple of years was the lung cancer. He didn't assume the RO would send his appeal to the BVA without asking for it. But when he got the letter stating his appeal was being sent to the Board - he thought it meant exactly that.

I can really see how he was misled by that - as his files seem full of letters that say one thing - and then say another. It just seemed like the regular ambiguous double talk from the VA. A letter saying you have to appeal - followed by a letter a few days later saying your appeal is already being sent to the Board.

They won't let you file an NOD or appeal without YOU stating WHAT you are appealing. Yet THEY can send a "your appeal is being sent to the Board letter" without telling you WHAT is being sent to the Board.

He does have a VSO - kind of -- their name is on his files.

Free

Did you have a service officer? It sounds like you were fed a diet of BS and smoke. You have to ask for a BVA appeal via a Form 9. The VA will not just send your claim to the appeals forum without you asking for it. They often mess up this part by sending your appeal to the wrong body. Like I asked for a DRO and the VA tried to send my claim to the BVA but I caught them before they could do it. Have you ever gotten a copy of you C-File or even seen it? If you don't prod the VA via a NOD and an appeal they do nothing but let the clock run. If you have an SO they should have told you to appeal or notified you of your options. The VA will let your claim die if you do not actively appeal rating decisions. When you file an NOD they are supposed to send you the Form 9.