Recent Question About Appeal Evidenced Asked Differently

[add55p]

All

recently, I asked a question about VA duty if the received new evidence prior to one year after the rating decision.

Here is my revised question: Is VA required to send me a Supplemental Statement of the Case if I sent in a statement from my doctor (nexus) prior to one year after the rating decision?

Thank you..

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[FormerMember]

No, VA is not required to automatically mail out an SSOC. Here's why. If you submit New and Material Evidence (your new nexus) the VA is required to do one of two things. First, they have to readjudicate it de novo (from a brand new perspective of looking at all the prior evidence as well as the new nexus). Next, if they grant, they have to rate you. If they continue the denial, only then would they send you a SSOC continuing your denial. Even if you have already submitted your Form 9 substantive appeal, and it has not been certified with a Form 8 signed yet, they can perform the de novo review. If the Form 8 is completed, simply file a waiver of review with the BVA and make sure that puppy doesn't come back to the RO like a bad penny.

[add55p]

Asknod

The VA did niether of the two actions that you mentioned less than one year after the rating..

They certified the claim to the BVA and now after a couple of years setting at the VARO, it is at the claim file is at the BVA.

I will write a statementstating that point.

Thank you..

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[FormerMember]

You may want to rein in for a moment, hoss. If you complain to the BVA, you will induce an automatic remand for that missing SSOC. Baaaaaad idea. To keep from playing ping pong and preventing the BVA krewe from sending it back automatically as defective due to the failure to issue said SSOC, you should ( in my estimation) promptly send in that aforementioned Waiver of Review in the first instance of the nexus letter you mentioned. Here's how VA, and more appropriately, how the BVA works. Any appeal that arrives for substantive appeal is inspected minutely to be sure it is complete in every respect. If, by God, the VARO forgot to include your SSI/SSD records (if you are already on SSI/SSD) the BVA gomers automatically kick it back to the VARO for them to collect and merge with the c-file. A one year delay minimum is the punishment for the round trip. This is why I often advocate for my Vets to obtain them themselves and submit them as evidence to get them into the c-file ahead of time. The same will apply with your N&M Evidence. Some rocket Juris Doctor fresh out of law school will ascertain there has been N&M E submitted and the chowderheads at the RO neglected to do that one last de novo/SSOC review. They promptly push the remand button and send it back absent a Waiver of Review.

There are two schools of thought and they are both predicated on the old pre-judicial review (1989 VJRA) era. Old school VSO thinking is one more bite at a new (local) RO decision via a de novo or DRO review is one more possible shot at justice. Nowadays, that isn't true. A remand of this nature gets a brief glimpse and a wave-off. VA is too busy to devote valuable senior RVSR assets to a BVA remand that is often a matter of first impression (legalspeak for a new aspect of law never encountered). They prefer to hit the M21 "figure out a denial logic" and push print. Adobe Acrobat II kicks in and back it goes to the BVA to sit and await a new "review".

I teach getting the flock out of Dodge and before someone with a Juris Doctorate at the BVA rather than a VSR with 40 hours of GEICO Insurance Claims school training on the clock. Of course, that is merely my idea of how to run a railroad. Others may weigh in here and tell me I am all wet. After all, I am merely a "content contributor". However, I do hope this helps you make a more informed decision on your future.

[Berta]

Right...if you have have evidence they did not consider in the SOC,or New and material evidence they have not seen, file the Waiver of RO consideration here:

AND send the additional infor5mation directly to the BVA. I assume they gave you a Docket Number since the claim was certified.

Put the BVA docket Number and your C file number etc etc on a cover letter or a 21-4138 and mail it to the BVA.

Mail it with a USPS tracking slip to get internet proof that BVA got it

And Check 2-3 weeks or so by contacting the BVA ombudsman to see if they got it.

Once it has been docketed by the BVA it is out of the ROs jurisdiction.

SOCs, and SSOCs, ...I learned the hard way many years ago.........I got a copy and paste SSOC once that was exactly like the SOC.

Many years ago I got a SSOC on a different matter that was worse then the initial SOC.The RO had manipulated the prime evidence I had in the SSOC and failed to even list my most probative evidence or consider it.

lessons learned.....if I get another SOC that is a denial I will whip out the Waiver in a heartbeat and file the I-9.

The first sentence in my I-9 appeal will be "THANK GOD I AM AT THE BVA!

The BVA can READ!"

And then I will immediately tell them why the decision is wrong and list and attach all of the evidence they (the RO) had but ignored.

Like I did for my last BVA case.

I shape everything these days, claimswise, for the BVA.I do send the RO all of the perinent evidence, regs etc etc etc. but after 20 years of ridiculous denials right off the bat (which did them no good,because those claims were all awarded... at the RO level anyhow....except for the BVA claim above .........

I just dont see the point anymore in putting time in collecting dust at the RO ,as soon as I have a chance to go to the BVA.

I used to advise many many years ago here to try to keep the claim at ROs to stave off a long BVA wait.

Things have gotten too far out of hand since then due to the backlog these days, to hope that advise will help every claimant.

The ROs have, for the most part, been the cause of the backlog.

[free_spirit_etc]

I also targeted my claim to the BVA. After looking at my own notices, and all my husband's previous claims, I could see that I would get nowhere with the RO. They seemed intent to deny claims, even if it meant they had to "misinterpret" what their own doctors said when their doctors reports were favorable to claims. When I had to fight several rounds because the RO denied the burial claim because they couldn't see evidence my husband was buried -- and I had to point out that the cemetery plot I purchased, the grave I paid to open, etc. were evidence -- I knew my chances of getting anywhere on a claim that was more complicated than one page were slim. So I went into this not expecting to be awarded benefits until the BVA level -- and always geared my arguments toward setting up my claim for the BVA.

I do think my RO actually reads the claims. They know exactly what to ignore and exactly what to point out (in their own twisted way). But I just let them play their cards first, and then build my hand for the BVA.

A good rule of thumb is to look closely at the evidence the RO keeps ignoring. They ignore it for a reason - because it is favorable to your case, and they can't overcome it with one of their arguments, so they just keep leaving it out of the picture.

So remember to keep building YOUR argument -- and keep targeting it toward winning the claim. If the RO can pull you into arguing about all those little side things that don't really matter -- you might win arguments that have absolutely nothing to do with winning the claim. Don't let the RO's silly logic distract you from building your case. Build your case, back it with evidence, and keep focused on your purpose. By all means, address what needs to be addressed in the SOCs, but keep your focus on building your case.

[add55p]

Asknod and Berta

I indicated that I wanted to wave my AOJ consideration in the form 9, but will type a letter and send it to the BVA right away to ensure that it is specifically requested.

I would hate to go another 2 year round waiting on my claim to be reviewed again at the Regional office..

Thank you both for that information..

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