Question On Choosing Dro Review

[kate7772]

My husband received the form asking if he wants to be heard by a DRO Review Officer or traditional appeal. From my research it seems he should opt for the DRO but there is no option on the form for formal or informal. Should this be written in or just check DRO and that's all? Is one better than the other?

Also, they sent the NOD back saying it wasn't signed. We could have sworn it was but will sign and return as requested. For the date signed, should he use the date of the NOD or the date actually signed (today.)

Thanks

Kate

[kate7772]

I smell trouble.

Why?

Edited November 7, 2014 by kate7772

[FormerMember]

Quite simply, I have been doing this for some time. VA is not in the habit of granting equitable tolling of suspense dates. I foresee them denying the returned NOD as being filed past the one-year date for appeal. I have seen this many times and indeed suffered the same fate in 2010. I was in the Seattle VAMC for almost a year. A DRO decision and SOC continuing a denial were issued while I was incapacitated and an inpatient in April 2010. I recovered enough to take over my appeals again by late July and filed the Form 9 asking for the equitable tolling of the sixty days due to being medically incapacitated. VA refused and I am still fighting them as we speak. My JMR from the CAVC granted me all my claims back to 1994 but VA clings to the belief that the failure to timely file a F9 in 2010 supersedes a grant akin to a CUE motion granting my earlier effective date of 1994. If they are unwilling to grant that to me, I doubt they will see reason on this one over a signature.

Additionally, there is no legal path to reversing the decision. See the law on free-standing claims for late filings of NODs/Form 9s. The law is dispositive and there is simply no law to support equitable tolling in this case. Considering we inhabit a "non adversarial environment where every doubt is resolved in favor of the Vet", you will hit the wall if you date the NOD now. It must be backdated such that it falls before the one year suspense date. Even with that prior date, it is doubtful they will honor it. I pray otherwise but experience in this field tells me it will be unavailing. The VA mailed it back to you for a signature knowing full well that this will drive a nail into the coffin. It merely completes the paper trail for a denial based on failure to appeal within the one-year allotted time. Best of luck and I do pray I'm wrong.

a

Edited November 7, 2014 by asknod

[kate7772]

This is even though they date-stamped it received within the time frame? And if they deny it due to this, will they do it right away or wait a couple years?

Edited November 7, 2014 by kate7772

[FormerMember]

They date stamped your unsigned Notice of Disagreement? You bet they did. It proves one thing. It arrived within the allotted one year but was invalid for a NOD due to lack of your signature. The one you have signed and remitted again, if it is past the one-year date, will be signed and VA will timestamp it showing it is past the one-year suspense date and it will prove to be the document that shows you did not timely file it. VA will usually take this as a request to reopen and whatever happens in the future (grant of SC?) will have an effective date of the time stamp of the newly received NOD. You could win by going up to the CAVC and arguing it by virtue of the intent. However, the law is the law. Waiting until the eleventh hour and the 59th minute is ill-advised for any number of reasons.

a

[georgiapapa]

Kate,

I know this will not help now but in the future always make copies of anything you send to the VA and always mail it by certified mail return receipt requested. If you had made copies, you may have noticed the lack of signature sooner.

I hope asknod is wrong but he is extremely knowledgeable regarding the VA disability claims process system.

Good luck to you.