Submitting additional evidence for NOD

[DevilDog12]

If my NOD is in "Ready to Review" status, can I still submit additional evidence, or will it delay decision even more?

[Recondo@53]

How long should a statement of case take after filing a NOD?

[DevilDog12]

17 hours ago, Recondo@53 said:

How long should a statement of case take after filing a NOD?

They are telling me 260 days

[FormerMember]

When you file a NOD, it is meant to entail a critical review of the claim up to that point by a higher review authority. If your claim was decided by a GS-10 VSR, a traditional review would normally be redone by a GS-11 or 12 RVSR, . You have two choices. The traditional route via a substantive appeal or the 38 CFR 3.2600 route asking for a DRO review.

If eBenefits says your NOD is "ready to rate", there's something amiss. VA doesn't rate a NOD. A NOD is meant to be last-gasp reanalysis of the denial and a potential intervention to possibly grant it. A NOD was never meant to be  a singular path to provoke the issuance of a SOC. I know it feels that way but that is incorrect. A NOD submitted with probative, exculpatory new and material evidence often is the fulcrum to a grant. Success hinges on its ability to convince the rater you're right. If the grant is less than a 100% rating (and most are initially), a SOC is also forthcoming as a matter of law. AB v. Brown in 94 held Vets always  seek  the "highest and best" rating s/he can attain. A claim (or appeal) thus remains in contention until it is mutually resolved or the Vet fails to file a VA 9 appealing it to the BVA. 

The filing of a NOD begins the two-part process of appellate review. The request for a DRO review at the filing of the NOD is superfluous at best. Any NOD is going to be critically reviewed for accuracy as well as error regardless of whether you ask for a regular path or a DRO. A DRO is the top dog in the review process but no more or less infallible than a RVSR.  Since DROs are  in short supply, it takes longer to get one.

A traditional appeal path doesn't mean there will be no review of your claim whatsoever. Some think it means bundling up the c-file and sending it directly to the BVA with no interim reinspection. A DRO review is ostensibly a very "hands on" critical review as to why they denied. You are asking them to grant the DRO review based on some pretty strong evidence-or you should be. By rights, a DRO review should be won in every case due to the posture of the Vet and the evidence of record. VSOs and attorneys both prefer to keep a claim local to exhaust the judicial possibilities before a substantive appeal to the BVA. The problem is often one of ignorance. All the evidence in the world is not going to cause a VSR or RVSR (or DRO) to grant your claim if they do not believe you're entitled. This is caused most frequently by ignorance of regulations or relying entirely on what the M 21 regurgitates as law. A minuscule error as simple as forgetting to grant you a 38 USC 1154(b) combat presumption can make your lay testimony null and void.

Here, the submission of new and material evidence as the new decision is being promulgated will cause the whole process to stop. A new review of the evidence submitted must begin anew. No SOC will be issued because a decision can't be made without a new review. A Supplemental Statement of the Case (SSOC) is what they issue if you submit new evidence after receipt of the SOC. I have filed as many as 4 rebuttals of an SOC and the ensuing 3 SSOCs afterwards. You must file the VA Form 9 within the first 60 days of the SOC issuance to keep the claim in appellate status and protect it. Filing the additional rebuttals to try to sway their thinking rewards you with the SSOCs. My Extraordinary Writ in January 2015 provoked a SSOC that granted virtually all I asked for. It is the first time VA felt "moved" to see it my way and avoid the appeals process by granting.

Oddly, VA says they instituted the DRO process in 2004. I had my first one face to face in October 1991 with the GS-11 rater who denied me. It didn't move him to grant anything. Being young, stupid and underrepresented by the DAV, I foolishly believed they had associated all my military records along with my Air America stuff into my file. Not. I found that out when I finally got my c-file in 2009.

My advice is to await a decision. If they deny, go to DC on appeal and submit any new nexus letters or evidence with a Waiver of review in the first instance at the RO with the BVA. This will protect you against Hamster wheel remands.

[broncovet]

I have had  3 DRO decisions.  

The first and third DRO reviews were "copycat" denials, where they regurgitated the bad decision from the RSVR's original bad  decision.  

My second DRO, however, was when I won most of my benefits.  This favorable decision came, not suprisingly, within a few months of a Writ of Mandamus that I filed.  Coincidence?  I doubt it.  

The people who have been around a while know this,  but there may be some Vets reading this who dont know the Veteran has "2" deadlines to meet before his claim will be before the BVA.  Missing either deadline is an automatic denial.

1.  Deadline number one:  The Veteran must file a Nod within one year of the RO decision.  

2.  Deadline number 2:  The Veteran must "perfect" his appeal with an I9 (Appeal to the Board of Veterans Appeals) filed within 60 days from the SOC.  Instructions and form is here:

http://www.va.gov/vaforms/va/pdf/VA9.pdf

     If you miss deadline one, its assumed you dont want to appeal, and if your appeal arrives after one year, they batch these up and haul them to the dump by the truckload.

      If you miss deadline number 2, you appeal is considered abandoned.  

You dont want to miss either deadline.   I never have figured out why they call this "claimant friendly non adversarial.", yet the Veteran has 2 deadlines and the Regional office has exactly "0" deadlines, they may take 20 or 30 years without penalty.  

Edited January 24, 2016 by broncovet

[DevilDog12]

Wow....thats some great information!  Thank you!  Now Im wondering if I should have just filed a reconsideration?

[DevilDog12]

What is a Writ of Mandamas?