A funny thing happened while I was searching for new ways to help Vets. I hear horror stories regularly about Vets who submit claims, sometimes followed by new evidence after a denial. One of the hallmarks of the VA is to ignore you or misinterpret what you are filing or complaining about. How many adverse decisions have you read where the BVA or the RO says something along the lines of “the claimant’s communication was interpreted to be a request for an increased rating” or some such drivel? Most Vets are not conversationally challenged. If you submit a claim for something, it is invariably in English and succinctly informs VA of what it is you seek. The VA, unfortunately, is grammatically incapable of absorbing what you ask for. No matter how well and clearly you couch your terms, the RO will manage to hamburger your intentions, thus causing interminable delay in correcting it. If I didn’t know any better, I would suspect it was a ploy to obfuscate the issue or frustrate the claimant. Unfortunately there is no prove of that.
Secondly, when you do finally get their attention and clear up any misconceptions, you will discover yourself humming Alex Trebeck’s immortal theme song for a lot longer than 30 seconds, often resulting in laryngitis. What I am getting to is that there are occasions, increasingly more frequent, where the VA simply allows your claim to fall through the cracks. Frustrated Vets often walk away from this system in disgust assuming their claim is inconsequential or just denied. By the time VA gets around to dealing with it you probably have moved and your mail is not being forwarded. Hence the claims is dropped for failure to respond.
In a more perfect world we file a claim. Reality, for the most part, dictates it will be denied for some arcane reason at the AOJ level. Most Vets at this juncture submit new evidence to buttress their claim(s) if they have any. Some submit the evidence as they initiate their appeal via their NOD. VA will, eventually, mail you an SOC telling you you have 60 days to mail in a Form 9, or, in the alternative, the rest of the year following the date of mailing of the adverse decision to do so. This is where the cracks develop. Often they fail to look at the new evidence you submit. They proceed to the BVA and you have to resubmit it there. An increasing number of claimants submit the new evidence and then await a readjudication at the RO rightfully assuming there is no need to appeal it as the RO is going to decide it. Here is where your claim goes into the deep freeze.
When you submit new evidence within the one year period [38 CFR 3.156(b)], VA is required to issue an SSOC addressing the new evidence. Their failure to do so puts your claim on hold. This situation continues until they act and issue the document. It makes no difference how long this sorry state of affairs continues. Your original claim, even one back to when you were discharged, is still viable unless and until VA acts on it. The judicial landscape is littered with these incomplete actions. Veterans would be well advised to examine old denials for errors. Assuming you can prove your claim, an old filing in 1985 that was improperly addressed can be worth hundreds of thousands of dollars. Calm down. The government does not pay interest on their errors, but it does add up.
The improbable vehicle for this conundrum is VAOPGCPREC 9-97. It was issued on February 11th, 1997 in response to a query by an RO about how to adjudicate a claim where a rater had wrongfully denied a Vet and needed guidance on how to rewrite the denial. The head witch at the General Council’s office, Mary Lou Keener, actually helped us all immeasurably with her response. In essence, the VA OperationalProcedure General Counsel PRECident stated that if VA does not, will not or cannot issue an SSOC before the one year statute of limitations runs out, that the Vet is still afforded 60 days from the date of the issuance of said SSOC. What it also did that is of even more import, was enunciate the legal requirement to issue the SSOC following the submission of the new evidence in no uncertain terms. VA had been noticeably remiss in their obligations regarding this over the years. It started popping up in one BVA decision after another shortly after its issuance- all the more evidence of VA’s culpability and effort to derail claims.
Witness just a few of the decisions I found without having to dig very deeply:
The site address for the General Counsel Precedent is:
I doubt VA will be sending us a thank you letter for being so helpful and informative of Veteran issues. It may have the unfortunate effect of causing a large number of Vets to reexamine their claims and discover they are still viable. If this results in even one Vet finding a discrepancy in his/her claim and getting justice long after it is due, we will feel vindicated. As the VA is so fond of saying(regarding CUE claims): “Justice delayed is NOT justice denied.” Let us hope this comes back and bites them on the proverbial butt. Vets deserve much better in an arena that VA purports to be “a non adversarial venue for claimants”. Amen
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 