SOC never received

[Navy4life]

When I filed my NOD in 2014, I specifically asked for a DRO review hearing on the NOD VA21-0958 form.  I never received anything in the mail.  After searching this site in January and the internet I found the following:

"After the VA receives a NOD from a veteran, it will prepare the Statement of the Case (SOC) for all issues that were not granted service connection or the maximum rating. The SOC is an explanation of the decision, including a cover letter that gives instructions about the appeal process. Also included in the SOC is a list of the issues being decided in the claim, a summary of evidence, the pertinent laws and VA regulations that relate to the claim, and the decision and reasoning behind each issue. The SOC may include helpful information in order for the veteran to prepare his or her appeal, but the most important thing to remember about the SOC is that the veteran has 60 days from the date of the SOC cover letter to send in VA Form 9, which is the substantive appeal. Failure to respond to the SOC within 60 days by filing VA Form 9 may result in the appeal being closed and the decision becoming final."

Fast forward to January 2016 when I inquired about my NOD, I found out that it sat "dormant" and that it "missed a step" in the processing of the NOD.  I wound up having my DRO review hearing in February.

My questions are:

1. Wasn't I supposed to receive the SOC?

2. Will I receive an SOC regardless of the outcome of my DRO hearing?

3. When I filed out the VA21-0958 one of the questions specifically asks the Veteran to list the service connection and % the Veteran feels warrants the service connection. Obvisously this is what I feel I deserve but is this actually something the DRO reviews and considers?

4.  Since I never received the SOC is that any violation of my rights?

Thank you

[broncovet]

Yes, its a violation of your rights.  I have not received an SOC from a 2004 NOD.  

The VA can/does take as long as they please to do an SOC.  One Month, one year, 10 years, 20 years..none of it matters.  The Va can just blame it on the backlog.  You have time limits, but the VA can legally take 30 years to process your claim and its ok.  

In 2008, I filed a Writ of Mandamus, in part, due to the failure of the VARO to respond to my 2004 NOD.

I remember their response.  It went something similar to: , "While the backlog is frustrating to us all, the fact that the SOC has not been completed is not a violation, as we are working on it, and there is no time limit the VA has to complete the SOC."  

The VA's response to my writ went on, and said that my 2004 document, "was interpreted as a benefit claim".    The VA then listed the actions they planned to take as a remedy to my complaint.  

The writ was denied.   A few months later, I got a benefits award letter.  I dont think it was a coincidence.  They probably knew I could appeal the denial of the writ to the Federal Circuit.  

However, the courts have something called "case or controversey".  In other words, the courts dont "hear" hypothetical cases.  You see, since I had been awarded my benefits, I had no case or controversey.  

Yes, I could/did appeal the effective date, but that was a seperate matter, and I no longer had a case after the award.

This is how they get away with shredding, and other stuff.  They do nothing until/unless you file a Writ. 

Then, in the response, the VA says,

"Why your honor, it just so happens we were working on this  Veterans case at this very day.  These Vets need to be more patient.  Golly, 4 years is not unreasonable delay, its just the backlog.   We should complete it very soon, so please dismiss this writ."   

 

[broncovet]

Here is my recommendation.  Continue to fight for your benefits.  

Once you win, use this issue to get an earlier effective date.  Remember, 38 CFR 3.156(b):

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

   This is where, in part, the "pending claim" doctrine comes in.  Kindly allow my explanation.  

You apply for benefits.  You either get them, or a denial.  Ok, you have a year to appeal.  Or, as explained above, you can submit new evidence, (in the appeal period!)  and this new evidence "will be considered as having been filed"  with the original claim.  

In other words, when you submit new evidence within a year of the decision, that is supposed to reopen the claim.  Now, VA owes you a decision:  "Is the evidence you submitted new and material"?  Your claim remains pending.  If I applied in 2002, and my claim is still pending in 2016, then, if I win my benefits, the effective date will be the later of when I filed (2002) or the facts found.  

However, if you dont appeal or submit new evidence, then the denial becomes "final" within a year.   

[Navy4life]

Well I thought I was supposed to receive one based on what I have read but I never received one.  As I stated in other posts on here my NOD never moved past the "received" step and sat dormant for over a year and few months.  If I hadn't asked about it via IRIS and the Under Secretary (email) it might very well still be sitting.  I believe this is the reason why I never received the SOC.  

I am still awaiting the decision from the DRO (going on two months).

[Navy4life]

3 minutes ago, broncovet said:

Here is my recommendation.  Continue to fight for your benefits.  

Once you win, use this issue to get an earlier effective date.  Remember, 38 CFR 3.156(b):

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

   This is where, in part, the "pending claim" doctrine comes in.  Kindly allow my explanation.  

You apply for benefits.  You either get them, or a denial.  Ok, you have a year to appeal.  Or, as explained above, you can submit new evidence, (in the appeal period!)  and this new evidence "will be considered as having been filed"  with the original claim.  

In other words, when you submit new evidence within a year of the decision, that is supposed to reopen the claim.  Now, VA owes you a decision:  "Is the evidence you submitted new and material"?  Your claim remains pending.  If I applied in 2002, and my claim is still pending in 2016, then, if I win my benefits, the effective date will be the later of when I filed (2002) or the facts found.  

However, if you dont appeal or submit new evidence, then the denial becomes "final" within a year.   

I certainly hope I get the effective date back to 2013!  If not I am going to be pissed!  I had my denial in 2014 based on my original claim in 2013.  All my evidence supports and warrants the effective date of 2013.  I know I have the "cart before horse" as of right now b/c I don't have a decision on my NOD but the fact that I never received the SOC puzzles me.  I should have received it as my right since I filed the NOD and I am finding out that this isn't the case....UGH

[broncovet]

You are justified in filing a writ of mandamus, but make sure you give VA more opportunities to mail you the required SOC, first.  

Try an IRIS email, and maybe a letter to VA certified mail return receipt requested.  It wont hurt to email bob McDonald either.

The writ is a "last resort".  If you can appeal, contact your RO, etc, etc.  Only use the court (writ) when everything else fails.  

You can do the writ yourself like Alex (Asknod) and I have done.

[Navy4life]

should I wait until the decision of the NOD comes?