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Case Of The Missing Nod



I've been trying to figure out what happened to my second NOD which seems like it disappeared from my C-file. I was told by phone by the RO that because my second NOD appealed decisions that were already on appeal from my first NOD that the second NOD was either cancelled or combined with the original appeal. I can only have one appeal in play for a particular contention was the explanation. Is this right?

Confused? I am and certainly the RO is as well. This is the result of listening to the VSO who talked me into submitting a "reconsideration claim" (before I found Hadit). My story ought to be as good an argument as any why veterans should not pursue this avenue. It's a three ring circus. Just appeal...but I digress.

So here's what happened. I filed a claim for SC of TIAs and a rating increase for migraines back in 2012. These were denied and the claim date missed the informal claim the VSO had submitted ahead of the FDC. The VSO told me that I probably had a bad rater and that trying it again was the surest and fastest way to fix the problem, even the missed informal claim date. So he had me compile N&M evidence and submit it with a "reconsideration claim."

Of course, the RO didn't complete the claim before the one-year appeal deadline would pass for the original denied claim. So, in order to protect the original claim date, I filed a last-minute NOD appealing both contentions which got lost within the RO.

Meanwhile, the "reconsideration claim" continued to process. In March 2013, I got an answer back on the "reconsideration claim" increasing migraines to 30% and continuing the denial of SC for TIAs and the underlying condition. I appealed these two contentions again through this second NOD, which is the one missing.

In Big Top Ring 2, I finally won the battle over whether or not I had filed a NOD and had filed it in a timely manner (thank God for that certified mail hand stamped receipt from the post office counter!). This appeal was opened and processed within the RO. I was granted the earlier effective dates based on CUE determinations. The SC for TIAs/cerebral thromboses and increase in migraines to 50% were denied and will move on to the BVA. My Form 9 is in on these two. The SOC referenced and included decisions made in the reconsideration claim's decision but not the second NOD.

In Ring 3 is this second NOD which never appeared in eBenefits. IRIS back-and-forth showed that it had been received and uploaded into my electronic C-file. Then it wasn't there. I mailed a package with a letter to the RO asking for a status update or explanation of what happened and enclosed a copy of the NOD and proof of postmark. Shortly after I mailed it, I got a call from the RO confirming what I was appealing to the BVA via the first appeal's Form 9 and that my Form 9 date was correct within the system. I asked about the second NOD and was told that I couldn't have two appeals for the same conditions/contentions. I did not get a solid explanation over what had happened to the NOD.

I feel like I'm fairly well protected by my Form 9 which contains and expands on the arguments I made in the second NOD for those same two contentions. I'm not sure what the second NOD would gain me at this time except for a second RO review of those contentions and several more months of waiting with some low probability of success. But the principle remains. Doesn't the RO owe me an SSOC or at least a letter stating that I cannot have two appeals on the same contentions? I don't feel very comfortable not holding something in writing.

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"I asked about the second NOD and was told that I couldn't have two appeals for the same conditions/contentions. "

That makes sense to me.

"Doesn't the RO owe me an SSOC or at least a letter stating that I cannot have two appeals on the same contentions?"

I dont think they have to send you anything as the I-9 form was filed by you, and they will advise you when the appeal is transferred to the BVA.

"I feel like I'm fairly well protected by my Form 9 which contains and expands on the arguments I made in the second NOD for those same two contentions."

That is a good move. The I-9 gives us a chance to expand on the issues and remember, even when transferred to the BVA, you still can send more evidence in, but send it to the BVA, as soon as they give you a docket number.

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Your problem is a semantical one. As long as you continue to call it a submission of "new and material evidence and a second NOD", VA will continue to ignore you. They are obligated to accept new and material evidence (NM&E), date stamp it, and insert it into the c-file. It's there. It just cannot be legally referred to as a "second NOD". You file a claim, you lose. You file your (one and only) NOD with (perhaps) N&ME, and wait for a de Novo decision. VA will write you and ask you if you prefer to sit on the Group W bench and have a DRO review. VA does not accept a second NOD. What you are desiring to file is additional evidence under 38 CFR 3.156(b) which is in conjunction with the claim on appeal but submitted within the appeal period. In addition to this "submittal", you are also querying the system to find out if perhaps they dropped the ball on an "informal claim" which seems to need to be addressed. In the next Paragraph, you remind them that it appears "claims in progress and currently on appeal" are not being addressed to your satisfaction because _________________. Three separate subjects for three separate people. Think of it as a Barber, a landscape guy and a mechanic. You do not call up Serenity Hair Salon and make an appt. for a haircut and ask them to change your oil on the Pontiac and to make sure they trim the hedge this time because they missed it two weeks ago.

VA is mentally anally retentive. If you sent in N&ME attached to something that said you think they ought to CUE themselves on the headache denial, you are in for some interesting litigation. VA will take this to be a new claim/contention and drop everything to start building this CUE file. This is a game of "Be careful what you ask for". If you give these bozos what they perceive as an enigma, they'll come to the wrong conclusion every time and say "Well, gee. We took it to mean he wanted to reopen his headache claim so we closed out his old one on appeal and began again. A lot of Vets do this to speed things up but it means they lose their earlier filing date." This is what/who you are dealing with. It gives them time to devote to something or someone else. Big corporations call it "Plausible denial" but VA, of course, would never, ever stoop that low.


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Thanks for the great advice, as always! At this point, I think I'll quietly wait for someone to do something, like forward my appeal to the BVA, which should happen at any time. I've made my point that I'm watching carefully and taking note of what's there and what's not.

The other lesson that I hope others take is to not bite on the tangelizing bait of a supposedly quick decision through the "reconsideration claim" process. Honestly, the status of all these contentions and the confusion surrounding them isn't the RO's fault. It's the VSO's. He created a three ring circus.

Send in the clowns...at this point, I need the comic relief.

Edited by TiredCoastie (see edit history)
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