Expert Help Needed: Statement Of Case And Form 9

[Fat]

I need some expert help.

After you receive the Statement of Case and you prepare to file the Form 9, what specific language should you use to ensure the claim goes directly to the BVA.

I know you should "refute" the statement of case reasons for denial.

Also, don't send any additional "evidence" with the Form 9 because the regional office has to redevelop the claim and produce an Supplemental Statement of Case.

That will probably bog your claim down another 1-3 years.

Specifically what language needs to be included in the Form 9 to get it quickly to the BVA with a docket number.

[Berta]

In 2008 I posted this info here from NVLSP and used it in my I-9 for my DMII AO claim:

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

NVLSP advised putting this onto the I-9 form and I think I pasted it into the Hearing part as I didn't want a hearing.

If you dont want a DRO review, check off No to whatever they send that asks if you do want one.

Attack every single statement in the SOC that is wrong and refer to and attach evidence as to why it is wrong.

I use Evidence tabs or yard sale stickers for each piece of evidence.

I then refer to Exhibit A, B, C etc in the I=9 Narrative, then list all of the evidence at bottom of appeal and then I make sure a corresponding Ex. A ,B, C sticker etc is on each piece of evidence,I refer to, along with my C file number and name and address.

(I use those name/address stickers I get from some vet orgs in the mail..it is worth a small donation to get them as I have used probably hundreds in the last 20 years dealing with VA.)

I disagree that sending in more evidence with an I-9 will bog down the claim., but maybe that is because my RO doesnt read it anyhow.

If you have a vet rep make sure they dont twiddle their thumbs on preparing the 646. They will have plenty of time to do that when the claim is formally set for BVA transfer.

Years ago VAROs would read responses to SOCs, and then as you said issue a SSOC.

In the olden days sometimes that turned the tide for the veteran.

There is more info here under a hadit search as to preparing a I-9 appeal.

I sent the BVA a lot of evidence as soon as I got a BVA docket number and I rebutted the remanded C & P opinion right away.

The BVA bnoted all of the evidence the RO had ignored and agreed with my rebuttal of the C & P BS. I won.

[broncovet]

I agree with everything Berta said, but will add my 2 cents.

A former DRO on hadit has this to say:

Once a claimant receives a SOC, they have 60 days from the date of the SOC to either "perfect' their appeal by submitting VA Form 9, which will prompt the RO to send the appeal to the BVA, or submit 'New" evidence that were not before the decision maker when he/she made their prior determination. When the claimant submits "new" evidence, the VA will evaluate the new evidence and either grant the benefit sought on a appeal or issue a Supplemental Statement of the Case (SSOC) outlining why the new evidence was unable to be used to grant the appeal. A SSOC will only address the new evidence the claimant submitted. From the date of the SSOC the claimant again has 60 days to either "perfect" the appeal by submitting VA Form 9, or again submitting "new" evidence. If the claimant submits new evidence again, then the process of either a grant in benefits sought or a SSOC will repeat itself until the claimant "perfects" their appeal.

The traditional appeals process is where the claimant wants to skip the DRO review and appeal directly to the BVA. In this case, the claimant still must send a NOD to the VA. The VA, more specifically the rating activity that made the prior decision, will send out a SOC. Once the claimant receives the SOC the process afterwards is the same as when the DRO issues a SOC. You either can submit "new" evidence and have the Rating activity reconsider their previous decision, which will either prompt them to grant the benefit sought on appeal or they will send you a SSOC, or you can "perfect" your appeal by sending in VA Form 9. Once the VA Form 9 is sent in, the regional office then prepares your claims folder for the BVA where it gets put on the docket. Remember you only have 60 days from the date of the SOC or SSOC to submit the VA Form 9!

[FormerMember]

We're way past choosing a DRO review here. The gentleman (Fat) is discussing his substantive appeal (VA 9) and what- or how- he should approach it. The time to choose a DRO review or traditional appeal was way back when you filed the NOD years and years ago.

First, you have sixty (60) days to file the VA 9 from the date stamped on your SOC. That's sixty sunrises and sixty sunsets if you're number challenged. It has to be postmarked so or you lose. If you decide to submit new and material evidence to the RO, a new decision will begin immediately. This doesn't take another 2-3 years to get a SSOC. It occurs usually within 90 days. You may win based on this de novo (brand new) decision and never have to go to the BVA. It has happened before. Attorneys are famous for this one.

Now, should you decide to submit new evidence and the VA denies yet again and issues you a SSOC, you do not have 60 days to answer it as the author above suggests. You have 30 days in which to file the VA 9 from the date stamped on the SSOC -assuming you have not filed the VA 9 yet -see 38 CFR 20.303(c ). Remember, the VA 9 merely formalizes the Appeal and prepares it for certification with the VA 8 . To CYA, always use a green card to prove you mailed it. The whole idea of an appeal is predicated on the fact that you and the VARO will never see eye to eye and it's time to move the circus to DC. Be sure and mail it to the intake center designated as the one that services you. Do not ever mail anything ever again directly to your VARO. Those days are gone. Everything has to be digitized. Do not ever file it on eBennies because the chances of Murphy's law intersecting your claim are enormous. Do it on paper and let them digitize it in a word-searchable format for your c-file. If your eBennie filing accidentally goes to Ebay, VA will tell you politely that you had 60 days and you missed it.

If you file a VA 9 with new evidence, chances are the RO will merely send it all to DC without doing any de novo review whatsoever. They're lazy. If you fail to include a waiver of review with the VA 9, any small defect, such as the VARO forgetting to include your SSA records, will cause the BVA to remand it about a year later and an additional one-year delay for them to obtain them and send them back to the BVA. I personally suggest Vets obtain their own SSI/SSD records and submit them at the outset if they are going for TDIU. This way they are a matter of record and you do not have to discover in 2017 that VA sent the c-file to DC without them.

I don't know the posture of your claim. If you already had a DRO review and are in the 60-day window following the SOC, and have no additional evidence to submit, saddle up the VA 9 and get a good seat on the Group W (wait) bench. They'll call your docket number in about two years. If you already had a DRO review and the SOC is the product of it, get that VA 9 in and go to DC and be quick about it. There's nothing more you can do at the local level. That's what the DRO was hopefully going to accomplish.

I have always rebutted my SOCs and have yet to win one. I also rebut my SSOCs and am equally empty-handed on that one too. I won an increase on one claim this spring after my VA 9 with no new evidence but that was due to my Writ at the Court. The increase still was not for the whole enchilada (100%) so I had 30 days to file another VA 9 to comply with the SSOC lowball grant because it did not grant what I was asking for. That is so rare as to be statistically inconceivable.

Sum it up.

1) No mo' evidence = VA 9 pronto with proof of mailing to Cheeseville or Newnan.

Or

2) File SOC rebuttal w/ new evidence within 60 days to Cheeseville/Newnan and wait (with proof of mailing), If you win, you may have to file a new NOD to argue any low ball rating but let's not get the champagne out just yet.

Best of luck and remember those time limits. They are inviolate and you could lose a lot of hard work (and retro) by missing it by even one day. VA is merciless on equitable tolling.

clear prop

Edited June 10, 2015 by asknod

[Pete53]

My advise to all is to answer VA in days. Don't wait for anything.

[FormerMember]

Pete, for years I would have advised the same. With the current choke point at the BVA extending out further and further, however, getting it done at the local level is almost paramount unless you have a house in Rome and time to burn. The SSOC poker game is a fine wire to walk. You have to have nerves of steel to do it and ice water in your veins to keep on filing SSOC rebuttals. Avoiding that two year trip (or more) to DC is infinitely preferable than watching it grow cobwebs at the VARO waiting for a VA 8 and transmittal. Remember, the moment you file the 9, it's put on ice for the BVA. To me, this SSOC rebuttal game is high stakes DRO poker without a DRO review. Keep in mind, none but the highest and most knowledgeable raters (read DRO) will be involved in the ratings so it is tantamount to a review.

Vets are going to have to relearn how to do this to play keep away from the BVA. It can be won in most cases at the RO level but keeping it there long enough to get eyes on the pertinent and definitive evidence is the problem. You've watched this dog and pony show for as long or longer than me and must see that we need a new way to skin a cat, Rebutting this SOC/SSOC game is going to be like having to hang ten on a surfboard. You have to keep looking over your shoulder at the breaking edge of the wave. Fortunately, you have 30 days instead of 3 seconds. I don't know that I'd trust a VSO with it. Like we used to say about M-26s--there ain't no 1004.

Edited June 11, 2015 by asknod

[Fat]

Thanks folks............

Asknod way to break it down.

HADIT is the best!