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marine0816

Award grant after Substantive appeal form 9?

Question

My lawyer just submitted the substantive appeal (form 9) to the RO, he stated that they will grant or send the claim to the BVA.  I didn’t know  they can still grant the claim at the form 9 step.. how often do they grant your appeal after submitting  the form 9 to them? Thank you..

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Congratulations!   The most likely time for that to happen is if you submitted new and material evidence.  You see, Va is supposed to "reopen" the claim with N and m evidence.  That evidence can be compelling, sometimes.    Or, sometimes VA does cue themselves and, beleive it or not promptly fixes their errors.  Its almost like winning the lottery.  We just need to see this more often.  Most of the time, if there is an error in the decision, the VA "defends" the error, even when its indefensable.  

Supreme Court Justice, Roberts, was "suprised" when he found out that Va takes a position against the VEt that is "substantially unjustified" over 60 percent of the time.  This normally means that EAJA pays the attorney fees.   However, I will be suprised if the EAJA will pay attorney fees when your RO awards benefits.   This may signal a new trend, even tho its a good one, Vets may not like it that much.  

Maybe the VA is saving EAJA fees by awarding the claim at the RO level.   Its all just a guess as to what the VA is thinking.  People always ask me, "Why did the VA do this?" Im lucky if I can tell you why I did something let alone the VA.  

Edited by broncovet
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How about posting redacted pdfs of the Decision Award/Denial letters and the SOC? Is there any written discussion regarding "T & P?"

Was your recent Award determined by a DRO? What is the focus of your continued Appeal?

With any New Decision, there is always the possibility of a VA Rating Dept Quality Review (QR) of the Denial or Award. I had a 07/15 Increase Denial reversed by mid 12/15 QR.

Then there's always the possibility of the Vet's Post-Decision submission of New & Material Evidence. All N & M E would require a Review by the Rating Dept prior to the Vet's C-File being Certifed and transferred to the BVA for Docketing. This Review of the N & M E could result in an Award at the RO level.

Did your Lawyer opine regarding his statement as to a possible early Award?

Semper Fi

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As far as I know , very few (if any) claims have turned around after the I-9 was filed.

I had one claim,set for BVA transfer, that I got awarded by a VARO.The only reason that happened was that the claim ( an SMC CUE claim and an IHD CUE claim )had been sitiing at my AOJ for 6 years by then , and I wrote to the Nehmer RO (who had my AO IHD death claim) that the CUE claims  were contingent on the IHD claim and that it had been filed years prior to the AO claim and that it should be resolved. The Nehmer VARO awarded the CUEs and the AO IHD death claim.

If you or your lawyer had submitted probative evidence after they issued a SOc, or SSOC, within the deadlines, or asked for a Denovo DRO review---maybe the claim will get a new look. In my opinion the VA is happy to get a I-9 because that means the claims gets off their desk.......

Still I would not count on it.

Part of the instructions for the I-9 include:

In part:

"Block 9. Use this block to tell us why you disagree with the decision made by your local VA office. Tie your arguments to the issues you identified in Block 8. Tell us what facts you think VA got wrong and/or how you think VA misapplied the law in your case. Try to be specific. If you are appealing a rating percentage your local VA office assigned for one or more of your service-connected disabilities, tell us for each service-connected disability rating you have appealed what rating would satisfy your appeal (The SOC, or SSOC, includes information about what disability percentages can be assigned for each disability under VA's "Rating Schedule.") You may want to refer to the specific items of evidence that you feel support your appeal, but you do not have to describe all of the evidence you have submitted. The Board will have your complete file when it considers your case. " etc etc 

I feel if there is evidence that the VA misapplied VA case law or regulations to your claim, that is something the response to the SOC should have covered.If they ignored probative evidence, that too should be raised with the SOC response.Or they can be asked to CUE themselves on any illegal decision,to your detriment, right away.

I am a little surprised that a lawyer would suggest , at the point of filing an I-9 that the claim could turn around, when they read it...if they even read it.

The BVA, on the other hand, will read everything.

 

 

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I agree with Gastone, we were both on line here at the same time....maybe we can help more with the redacted info he mentioned, as attached to this post.He is right as to the N & M evidence.

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1 hour ago, Berta said:

As far as I know , very few (if any) claims have turned around after the I-9 was filed.

I had one claim,set for BVA transfer, that I got awarded by a VARO.The only reason that happened was that the claim ( an SMC CUE claim and an IHD CUE claim )had been sitiing at my AOJ for 6 years by then , and I wrote to the Nehmer RO (who had my AO IHD death claim) that the CUE claims  were contingent on the IHD claim and that it had been filed years prior to the AO claim and that it should be resolved. The Nehmer VARO awarded the CUEs and the AO IHD death claim.

If you or your lawyer had submitted probative evidence after they issued a SOc, or SSOC, within the deadlines, or asked for a Denovo DRO review---maybe the claim will get a new look. In my opinion the VA is happy to get a I-9 because that means the claims gets off their desk.......

Still I would not count on it.

Part of the instructions for the I-9 include:

In part:

"Block 9. Use this block to tell us why you disagree with the decision made by your local VA office. Tie your arguments to the issues you identified in Block 8. Tell us what facts you think VA got wrong and/or how you think VA misapplied the law in your case. Try to be specific. If you are appealing a rating percentage your local VA office assigned for one or more of your service-connected disabilities, tell us for each service-connected disability rating you have appealed what rating would satisfy your appeal (The SOC, or SSOC, includes information about what disability percentages can be assigned for each disability under VA's "Rating Schedule.") You may want to refer to the specific items of evidence that you feel support your appeal, but you do not have to describe all of the evidence you have submitted. The Board will have your complete file when it considers your case. " etc etc 

I feel if there is evidence that the VA misapplied VA case law or regulations to your claim, that is something the response to the SOC should have covered.If they ignored probative evidence, that too should be raised with the SOC response.Or they can be asked to CUE themselves on any illegal decision,to your detriment, right away.

I am a little surprised that a lawyer would suggest , at the point of filing an I-9 that the claim could turn around, when they read it...if they even read it.

The BVA, on the other hand, will read everything.

 

 

I found this In section M28R, Part III, Section C, Chapter 3 March 8, 2013..

 


6. Receipt of VA Form (VAF) 9, Appeal to the Board of Veterans’ Appeals
The receipt of a properly completed VAF 9 is considered a substantive 
appeal.
(a) The VREO must ensure that VACOLS is updated with receipt of the 
substantive appeal.
(b) Additionally, the entire record must be reviewed to determine if further 
development is required. 
(c) If further development is determined not required, the VREO must 
ensure that one of the following actions is taken:
• Award the benefit sought
• Prepare the case for review by the Board of Veterans Appeals 
(BVA)
• Determine if the appeal is deficient in specification of errors of fact 
or law

 

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