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SamT

Denial of Form 9 because late

Question

My Form 9 was denied because it was 20 days late, but they did get it. 

Is their anything I can do to preserve my appeal.

I have sent in a NOD against their statement of the case AFTER the form 9 was denied.

 

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Its Rough, but not impossible.    Some questions I have:

1.   Do you have a certified receipt of mailing the form 9?  What is that date?  What is the date of the decision SOC?  

2.   Did you submit any "new and material evidence" in your appeal?  This is super important, as submitting new evidence means VA has to file an SSOC (Supplemental SOC).  This keeps your appeal "live" for at least another 60 days.  If they FAILED to file an applicable SSOC, then that is error on their part.  

Consider taking your file to an attorney (VA experienced) and ask him to review it to see if he can get past this late filing.  There are some issues which may "toll" the date which are too complex for me to provide here, but at least one of these is if you have a mental disorder.  

 

If all this fails, then you can look to filing a CUE, there is no time limit on filing CUE errors, but the standard of review is heightened (made worse for Vets) with CUE.  

 

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Also, where did you mail the form 9 to?  VA has a habit, when the VEt mails the form 9 to the wrong place, such as the VARO, of sitting on it until the appeal period has passed instead of forwarding it to the correct address.  An attorney may be able to "fix" this for you.  

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This is one of those VA Appeal Technical questions that could use an AskNOD's opinion.

I can't say I recall seeing another Vet's post here on Hadit regarding the Late Filing of the 9.

As I recall, if you don't file the 9, you still have the remainder of the original 12 Months from the Denied Issues Decision Date to perfect your appeal, even if you missed the 60 Day I9 file by Date.

Chances are, that's not you, right? When was your 1 Year File by Date originally set to expire?

How did you come to miss the I9 File Date? Were you Flying Solo on this appeal, no VSO POA Rep?

Semper Fi

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Just put an eyeball on the M21 - 1MR Part I Chapter 5 Sect E. see Sec 23 B. Regarding a  "Not Timely Filed Substantive Appeal I 9 Form."

It appears that even (1) day late could be grounds for RO Rating Dept Closing out a Vet's appeal, let alone 20 days late. The Reg states the Rater "MAY" close the VACOLS Record and notify the Appelant (You) and your Rep that due to not receiving the I 9, the Decision has become Final. A VA form 4107 explaining your rights to Appeal this adverse Decision has to be mailed to you and your Rep. Did you receive the 4107, have you or your Rep Filed a NOD regarding the closing of your Appeal.

Semper Fi

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