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MarkInTexas

When Is It Too Late to Submit Evidence Before BVA

Question

When is it too late to submit new and material evidence in an appeal?  I just got my Dear John letter from the VA this weekend in the form of a Statement of the Case from a NOD I had filed on an initial rating back in 2013.

I haven't filed my Form 9 yet, and know I'm a few days into my 60 day deadline clock, so don't want to waste too much time.  I'm just wondering that if I receive another IME or IMO if I can submit them before my case gets transferred to the BVA.

I haven't decided my options for hearings yet....video...in person....etc.  Any thoughts?

Thanks again!

Mark

 

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Right up till you get the VA "60 Day New Evidence Cut off letter."

The important thing is to never set on your N & M Evidence, you never know, it should and could trigger the VA Mandated Review of your Denial by a Sr Rater or DRO upon receipt of N & M Evidence. If the evidence is strong enough, an award could be granted well before your BVA Hearing is on deck. At the very least, if Reviewed, you'll get another SOC.

Semper Fi

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You can submit N & M E at any time up until the BVA judges (VLJ) pick up your case for decision making.

Sending in evidence in to the RO at this time might reset the Case Certification Process, whereby the RO "ensures" that the file they have is complete.

If you're worried about the time-frame for the VLJ, you can always request a "stay", buying you a year to submit your N & M E.

 

If you give them the evidence now, it could delay the day you set your Docket Number with the BVA.  This is the key.  Your case is heard in Docket # order generally.

I would rather delay at the BVA then get held up at the RO, especially if I knew I was going to the BVA.

So, I'd say submit appeals request (Get Docket #), request "stay" of case, submit N & M E (referencing Docket #), release the "stay".  Then wait. 

 

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What we're seeing is that VA will accept your N&M E and usually still issue a SSOC. They rarely, if ever, change their MO on this. SSOCs eerily resemble the SOC as if they never look at the N&M E.  With the advent of a "no returns'' policy at the BVA (i.e. no remand for de novo review at the RO based on N&M E), your best bet, and the one we're all seeing a lot of success with, is submission of the N&M E only to your BVA judge for a truly "new look' at it. If the IMO/IME is probative and well- documented, the VLJ is far more receptive (and intelligent) and a grant there is far more  likely. After filing CUE on a skin scarring reduction, I chose to include it in my laundry list on the Extraordinary Writ. VA  promptly gave me back the 10% and I submitted a new IMO from my PA-C on my skin to the VLJ at the hearing. He didn't quibble and granted the increase to 30%. If you do it right, you win. Eventually. Why it took me 21 years is a good question. Best of luck sir. 

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Does the submission of N & M E involving a pending BVA appeal actually reset and or add significant time to the final RO's Certification of the appeal to the BVA? I would think absolutely, if it's received shortly before the "60 Day Cutoff" for submission of N&M E. What if it's received 1 or 2 years before the RO Certification and 60 day  Evidence Cutoff?

I've had no experience with the BVA, but I would have a hard time setting on N&M E that I believed was so compelling as to to be a Real Deal Maker. Considering all the mistakes most Vets, myself included, made on their 1st foray into the Claims Arena; I still believe a N&M E triggered RO Review by a Sr Rater or DRO is worth consideration.

 As I recall, I think I recently read that after filing your 9, BVA hearings are still taking upwards of 500++ days.

Semper Fi

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Thanks for the posts!  I have one case that I will need to file a NOD on, and the remainder on a Form 9 to the BVA.  This is a relief knowing that I'll have a little time to get another IME/IMO if needed.  I was worried that once I submitted my Form 9, all bets were off for new and material evidence.

My blood pressure just went down a few clicks knowing this.  Thanks again!

Mark

 

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