Wow! Talk About Fast Action On My Cue And Nod!

[RockyA1911]

I finally got a response from the IRIS I sent last Thursday asking the status of my July 5, 2005 I/U claim and for them to confirm that they had received both the 8 March 2007 NOD, and 13 March, 2007 CUE.

The response was that my file is being reviewed by the rating board as of 3-16-2007. I called the 800# also after receiving the IRIS response and the guy told me my file had been pulled and is being reviewed by the rating board since 16 March, 2007.

So it looks like I will get some kind of a decision shortly and I did not file a Form 9, just a letter stating Notice of Disagreement and stated what was in error and what it should be, same with the CUE.

Had I sent in a Form 9 with it requesting a De Novo review, I don't think it would be at the rating board right now, it would be processed as an appeal and put in the appeals waiting line.

[Berta]

Right- you have made some good moves Rocky-

They started working on my CUE too as soon as I responded to the denial-

I pointed out all of their errors in the denial-

I asked them to reconsider the BS they sent me-in light of established VA case law and regs and I attached even more legal evidence of the CUE they committed.

When a claim moves anywhere it means they are doing something.

[LarryJ]

And, then again, if you should wait until this time next week and call them and ask where your claim is...........they might tell you that they bought it some popcorn, because it was nice, and then took it to the zoo.......to show it some REAL monkeys!

just sayin........the wife and I have a running bet as to where they are going to tell my claim is THIS week.

[mobie16r]

Rocky,i am pulling for you to get a IU rating,but take your time and don't get to overjoyed.The rating board is where you want your claim to be,remember the rater could need more information and send your claim back to the pre-determination team.Like Larry said give them a call next week.Good luck.

mobie

[Vike17]

Rocky,

Your C-file being at the rating board probably doesn't have anything to do with your appeal, it's probably there so the rater can work on your IU claim. Your appeals will more than likely be worked on at the Appeals Team.

"Had I sent in a Form 9 with it requesting a De Novo review, I don't think it would be at the rating board right now, it would be processed as an appeal and put in the appeals waiting line"

I don't know how many times I've said this before here on Hadit, the NOD is the first step in the appeals process and by submitting one will have your claim "processed as an appeal and put in the appeals waiting line." Furthermore, the Form 9 should not be used to request a DRO review or a hearing at the RO, it's intent is to "perfect" the claimants appeal after they receive a SOC or SSOC and have the VA forward the appeal to the BVA! Had you sent in Form 9 without writing a NOD VA would have taken the Form 9 as the NOD; however, this isn't what the Form 9 is for!

Vike 17

[Berta]

The National Veterans Legal Service Program suggests requesting DRO review right in the NOD.

If Rocky did this he might have gotten the idea from me- I got this idea from NVLSP- in the 2006 edition Veterans Benefits Manual page 1323, part 16.5.2.1.

But I dont get requesting a DRO review on a form I-9 -

in my opinion-it would be too late-

a hearing is different and there is a box to request that on the I-9-

Edited March 20, 2007 by Berta (see edit history)

[john999]

Rocky

The VA can go back at one year from the date you filed for IU if you have evidence you were unemployable at that time. Sometimes the VA waits and wants documentation as to exactly when your IU began. They did that with me by demanding to know when I last worked for the USPS. I had to send in documentation to prove my last day at work.

[Guest RickB54]

So it looks like I will get some kind of a decision shortly and I did not file a Form 9, just a letter stating Notice of Disagreement and stated what was in error and what it should be, same with the CUE.

Had I sent in a Form 9 with it requesting a De Novo review, I don't think it would be at the rating board right now, it would be processed as an appeal and put in the appeals waiting line.

I don't think anyone advocated that you send a form 9 with a NOD. In fact I even indicated a form 9 is only use when your claim is certified to the BVA. I even suggested that a form 9 be used as a cover sheet to a substantial written appeal. I agree with Vike17 I doubt very seriously that you appeal is even being considered at this point. Most appeals are not even reviewed for months sometimes years depending on what regional office is serving the veteran. When the va receives the nod they will notify you by mail that they have it, but even at this point they have not started to work on it. Ae this point, your NOD hasn't even been in the system long enought for the va to have generated the form letter.

[RockyA1911]

Don't know if that is the case or not. I do know that my C-File was just received back at my regional VARO from Cleveland, OH, The Tiger Team, on the 12th of March, 2007. My file is at the Rating Board at my regional VARO as of 16 March, 2007. So it went to the rating board only 4 days after they received it. They received my NOD on the 8th of March, 2007 and the CUE on the 14th of March. I didn't inquire about the status of the I/U until 15 March, 2007 and I was told someone would call me back and they asked the date of which my claim for I/U was submitted.

They already had all the info as to date last worked 27 Feb, 2004, medical opinion from MD stating unemployable etc., They have had all that since 5 July, 2005. My 70% rating given last month is effective, 11 July, 2005. I had a 60% rating prior to that last Jan that the effective date was 11 July, 2005.

I wholeheartedly agree with Vike's last statements and that is just what I did after receiving the rating decsions.

[Guest jangrin]

John999 said,

The VA can go back at one year from the date you filed for IU if you have evidence you were unemployable at that time. Sometimes the VA waits and wants documentation as to exactly when your IU began. They did that with me by demanding to know when I last worked for the USPS. I had to send in documentation to prove my last day at work.

If this is true, then if a person was awarded 100% SSDI back dated a year from the time a person filed for TDIU, than would the VA award one year before the claim was filed? Potentialy that could be a large sum of retro at 100%. How likely is it for this to happen?

Jangrin

[theotherguy]

I'm not trying to be a spoiler here...but I don't think I'd look to far into the fact that the rating board has received your claim for CUE. There is no development required in these situations since the CUE would have to be based on the evidence already in your claims folder at the time of the previous decision. So my question is where else would the claim be held except the rating board?

Edited March 21, 2007 by theotherguy (see edit history)

[Vike17]

Theotherguy,

"So my question is where else would the claim be held except the rating board?"

Normally the Appeals Team. The Appeals Team at each Regional Office has jurisdiction over NOD's requesting a DRO review. Now if the claimant chooses to have his apeeal handled the traditional way, then the C-file generally goes back to the Rating Activity for a SOC to be produced. However, sometimes the Appeals Team will also produce a SOC in this situation, but normally the team that made the prior decision will write the SOC. If I remember correctly Rocky choose a DRO review in this matter.

Rocky still has a claim for IU pending and that's probably the reason why his claim is with the Rating Activity. Also, the VA will normally decide all open issue first before deciding an appeal.

One thing I must say is that a couple of years ago I had a claim that was totally screwed up. I sent in a NOD for the veteran outlining the mistakes, which one of them was the effective date. The RVSR missed a Informal claim and applied the date of his formal as the effective date. Well, the Appeals Team sent his C-file back to the Rating Activity to correct this particular error, but all other issues on appeal were addreses by the DRO. This isn't he norm by any means and I don't know why the DRO did this , but normally the DRO has jurisdiction over issues raised on appeal.

Vike 17

Edited March 21, 2007 by Vike17 (see edit history)

[Berta]

Jangrin- in our case here they did this-

gave Rod 100% SC date that was the same as his SSA entitlement date-

it was a year prior to his claim for increase.

If VA used the SSA records (in our case they didnt use his SSA records at all to determine his actual award-but they did use the SSA date)and it was one year prior to the date of his claim for increase.

VA usually will award that extra year if the medical records warrant it.

If not the veteran can NOD the date.

It is hard to say- the VA never made reference to the SSA finding at all- and completely ignored them-

but the VA DID use the SSA date of 100 SC% disability-figure that?

They based the 100% award primarily due to the battery of shrink tests they gave to Rod.

They could have easily consider his CVA brain damage as somehow affecting his levels of PTSD-and then used that to deny higher PTSD rating.

It didnt work.

I listed them here before -there are many tests a good psychiatrist can give that can properly assess a veterans mental and organic brain disabilities and then separate them as to service connection.And these tests can reveal unemployability.

[theotherguy]

My bad Vike, I thought that the CUE was a non-appeal issue. Being the newbie stinks sometimes

[RockyA1911]

Vike said,

"Now if the claimant chooses to have his apeeal handled the traditional way, then the C-file generally goes back to the Rating Activity for a SOC to be produced. However, sometimes the Appeals Team will also produce a SOC in this situation, but normally the team that made the prior decision will write the SOC. If I remember correctly Rocky choose a DRO review in this matter."

If the C-file goes back to the rating activity, and they agree with me on the math error and the EED, then they can grant what I wanted, correct?

If the rating activity does grant the benefits sought, then they do not need to produce a SOC. Right? Do they then just send an award letter instead?

They only produce the SOC if the Rating Activity stands by their previous decision and does not grant the benefit sought. Correct?

So what I'm trying to find out is a SOC is not always produced, but only when the benefits sought are denied. Is this right?

[theotherguy]

To my knowledge, an RVSR does not possess the ability to overturn another RVSR's decision unless either new evidence is received or a clear and unmistakable error has taken place. A DRO has the ability to make a new decision based on the same evidence available to the RVSR, which is why electing this procedure is to the advantage of every claimant pursuing benefits under appeal. The only time a traditional appeal should be elected is if you are attempting to fast-track your case to the BVA or are confident your CUE call is legitimate.

It is also possible to simply ask that the claim be reviewed for CUE without actually filing a formal notice of disagreement. This was what I thought had taken place based on the earlier comments...

I hope you are able to get the matter resolved quickly

Edited March 22, 2007 by theotherguy (see edit history)

[carlie]

Rocky,

They could also do a patrtial grant or defer an issue for further development and still produce a SOC or SSOC.

carlie

Edited March 22, 2007 by carlie (see edit history)

[Vike17]

Theotherguy,

"To my knowledge, an RVSR does not possess the ability to overturn another RVSR's decision unless either new evidence is received or a clear and unmistakable error has taken place. A DRO has the ability to make a new decision based on the same evidence available to the RVSR, which is why electing this procedure is to the advantage of every claimant pursuing benefits under appeal"

Not too bad for a newbie

Rocky,

Carlie is correct. For example, let's say you are appealing a decision for PTSD which was granted a 50% evaluation. The DRO grants an increase to 70%. Since the DRO didn't or couldn't grant the maximum percentage allowable, which is the 100% rate for this particular disability, the DRO would produce a rating decision granting the increase to 70%, but would also produce a SOC outlining why the 100% evaluation wasn't assigned. Does this make sense? In this case if you still disagree with decision to only grant the 70% and not the 100%, the veteran would need to continue the appeal with either submitting Form 9 or sending additional evidence within 60 days of the SOC. Even though the VA issued a rating decision and one could technically submit a NOD and start the appeals process all over, it wouldn't really serve any purpose because since this issue was already afforded a DRO review, the claimant could not ask for another one. Then the VA would issue a SOC which would mirror the first one any ways because it would be for the same issue and same arguments.

I hope I didn't confuse anyone with this senario. If so, I'll try to explain it a little better.

Vike 17

[RockyA1911]

OK!

Now I don't know what to think. I sent IRIS inquiry a few days ago asking the status of the NOD, CUE, and I/U claims.

I just received this response this morning. It is still not clear whether they did them all or just the I/U, but I specifically asked the status of each.

Response (Department of Veterans Affairs)

03/22/2007 07:32 AM

Dear Mr. XXXXX,

It appears that a decision has been made and you should receive the results of our decision in the next few weeks.

Thank you for visitng our website.

XXXXXXX X. XXXX

Veterans Service Center Manager

328/132

[Vike17]

Rocky,

Then just sit back and wait a week or two and give the VA a chance to get whatever decision they made out to you. Don't get your panties all in a bunch over this. I know it's frustrating, but you've been waiting for quite some time now, so one to two more weeks aren't going to make that much of a difference in the big picture.

Vike 17