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JustGettingStarted

Claim closed, reopened for reconsideration - do I need to watch NOD date?

Question

My claims were closed on 5 Jun.  It was obvious that lot of evidence was completely overlooked so I did a letter to request reconsideration.   The claims all opened back up the following week.  

Does this mean I do not need to worry about a NOD date at this time?  In other words, if my claims are not decided by Jun 2018, will I need to file a NOD, or does getting the claim re-opened reset the NOD deadline to one year from the date they are closed out in the future?  

The new estimated completion dates are Jan - Aug 2018.

Thanks,

JustGettingStarted

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EXCELLENT QUESTION!!  Unfortunately, right now, there is not much we can do if lazy VA employees just decide not to work our claim and "delete" it from the system without bothering to adjutciate it.  

You are on the right path, disputing the "closing" of a claim which was not adjuticated and somebody deleted it to make the backlog look better.  

Its a violation of 38 CFR 3.103, which states, 

Quote
§ 3.103 Procedural due process and appellate rights.

(a)Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

The problem is some case law, where the CAVC deterimined something called a "deemed denial" meant the claim was denied, when we never get a decision.  Later, they weakened that and said that the claim would be "deemed denied" only if the Veteran could ascertain that it had been denied!!!

VA also must give a "reasons and bases" for denial.  Sec Shinseki tried to stop that, and that would have been very very bad for Vets.  Why shouldnt VA have to give us a reason why they denied us???

Are they afraid to tell us?    Well, you can not get a valid "reasons and bases for denial" if they never adjuticate it or You have been denied due process.  

THIS is what I recommend:  (By the way, its happened to me, also)

1. Dont file a NOD, just yet.  In the NOD form you have to give a "date of RO decision", well you can not do that if you have no RO decision!  

2. Do what you did:  File to reopen.  I would explain that you had previously filed and the decision was inexplicably closed on ebenefits.  

3.  Continue with your claim.  Remember, VA has something called an "abandonded" claim.  Make sure they know you have not given up on it.  Send an IRIS email as to the status of claim for xxxx filed on yyy date.  

4.  Sometime down the road, since you complained about the closing, you "should" get a decision.  If you get your benefits, but at the wrong effective date, hopefully you still have a copy of the paperwork you sent in the first time, and you mailed it certified mail return receipt requested.  Dont be so naive to thing the VA wont just shred or delete your claim electronically and then lie that you never sent it in.  That is why you need to DOCUMENT when you sent it in.  

5.  If you get a decision with an effective date consistent with THEM closing it out, then appeal the effective date.  

6.  Frankly, you got them by the runyionies now, if you have your initial claim documented, that is, you have a return receipt on the date the VA received your claim.  

7.  If the VA pulls this again, then report them to the white house, it sounds like somene needs fired.  I would not do that yet, people make mistakes and delete stuff in error.  But if they do it twice, then report them.  

8.  Way down the road, if VA wont adjuticate the claim, you can consider a writ of mandamus to compel VA to give you due process and a decsion along with reasons and bases.  Wait on all that tho, someone may feel real bad about it getting deleted, especially if it was in error, and you may even get a little sympathy when they adjuticate your claim.  

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Even if a reconsideration is filed, it does not stop the NOD deadline.

Hopefully you will get a proper decision before you even have to file a NOD...

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True, Berta, but how can VA say that you failed to meet the one year deadline to file a nod, if they never adjuticated it?  

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That was part of my point when I asked the Secretary to prepare a Fast Letter, advising all claimants, VSOs, and vet lawyers as well as the VAROs that one cannot properly prepare a NOD, if a decision contains a CUE.

This vet apparently wants to file a reconsideration because they failed to address some of his evidence.

If the VA had receipt of this evidence and it was Probative and not redundant or cummulative, then that is a CUE , within the appeal period.

The VA did re=open the claim. He needs to check his VCAA 5103 waiver. They might have denied him his VCAA rights.

But whether re -open or reconsideration, or whether he also files CUE, the NOD deadline will still loom so he better mark his calendar.

A re open can get the retro date of the Re-open, but a CUE gets to original claim date,and  a reconsideration might produce the same potential EED...hard to say here...

I have had personal experience with ALL of these tactics.

 

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This is similar to what happened with my first claim. They didn't read my VAMC medical records. The C&P exam was literally a sham and they used it to rate my left leg at 10%. Never mind the fact that I had drop foot, used a cane and 9 other specialists had property evaluated the condition in the 12 months prior to the decision. They accepted my request for reconsideration and 3 months later corrected the error and it was over.  Yes, the clock is still ticking for your NOD so dont let it go. The longer you put it off, the later your appeal is going  to be heard. 

I would give the reconsideration 9-120 days. If you dont see it moving, then by all means prepare the NOD. The type of reconsideration you have in motion is not in the CFR or the USC, only in the Training Manual (M21) so be aware of what they are doing.

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