I keep seeing this popping up on my search parameters of what kind of queries lead people or Vets to my site. Obviously, there seems, even in this day and age, a large number among our community who are unfamiliar with this legal tool. Lets look at what they are and, more importantly, what they mean to you and your claim.
Let’s begin with a primer on what each piece of legal paper actually means and what you need to do to protect yourself. Since 85% of us slice to the right and go out of bounds on the first tee, it pays to know how to hit straight before we tee up.
We begin, as most know with the Form 21-526 and provide everything there is to know about us and what we perceive as our complaint. VA promptly changes it into something else and off we go. The next step is the Disability Benefits Questionnaire- a modified Christmas list for Santa.
Six months later, if we have filed a Fully Developed Claim (FDC) we are given the “You lost” briefing. We file our Notice of Disagreement NOD which now has its own form 21-0958. We choose the Decision Review Option or a traditional appeal. In either case, we will be provided with a Statement of the Case or SOC. There is no official SOC form in the VA library-yet. The SOC arrives eventually but usually takes about a minimum of 13-15 months. If they decide to grant anything due to you having a winning NOD argument, you will be provided with a rating granting that part of your NOD. If there are any issues VA refuses to grant, the SOC, usually mailed in the same manila envelope, explains why they are not going to see it your way. This happens regardless of whether you elect a DRO review or a traditional appeal. By law, any new evidence submitted within the year window of the NOD and certification of Appeal must be readjudicated or what is called “de novo review”. The traditional appeal path doesn’t get this treatment although VA would hotly deny it.
The SOC is legally required under 38 CFR §19.29 and it has to be painfully clear what they are denying and why. You are going to use this document to argue your appeal. It has to be clear to the even the densest Vet as to why they (VA) disagree with your view. They may be horribly wrong (and often are) but they have to put it in layman terms so you can understand. If they forget to issue a SOC, the claim will be remanded from the BVA for one. Yep, it still happens sometimes.
Within sixty days of receipt of the SOC, you must either answer or with an SOC rebuttal letter or file a Form 9. If you are finished submitting evidence, the claim proceeds to certification and is sent to Washington, DC. This can take a year in some cases. However, if you find new evidence to submit with the Form 9, this provokes yet another de novo review decision process on your new evidence. At least that’s what it says in the regulations.
If VA is adamant about your denial, you will be issued a Supplemental Statement of the Case-usually within thirty to ninety days. This is the last call for alcohol. VA has declined to change their mind and the SSOC is merely a formality to express a “What part of ‘No!’ don’t you understand?” If you have not yet submitted a Form 9 yet, you must do so within 30 days of the date postmarked on the SSOC envelope. You may choose to submit yet more evidence if you have it and ask for a new decision yet again. VA is once more legally obligated to review it yet again. If their mind is made up and all that you have sent in is still not availing, you will receive yet another SSOC. There is no Supplemental Supplemental Statement of the Case or SSSOC. This form of Badminton can theoretically go on forever assuming you have a bottomless war chest of New and Material Evidence. Most of us don’t.
An SSOC (or SSSOC) must be answered to within 30 days of the postmark. If you miss this day, the claim moves on inexorably to certification to DC. Nothing can stop its forward progress to a VA 8 from this point on. Some at VA insist they’ll keep de novoing this sucker to death and continue to mail out SSSSOCs to keep the record straight. You are not obligated to answer a SSOC. Your claim will move on unhindered even if you don’t assuming you’ve timely filed your VAF 9. You’ll hear some oldtimers call it a one dash nine (1-9). In 1994 or so, they renumbered it as simply Form 9. Beware old VSO rep dummies who pretend to be oldtimers- they call it an I-9 as Eye nine. Red flag.
A SSOC rebuttal letter is a last gasp of air before DC. It’s an attempt to get the chowderheads at the VARO to see reason. Considering how many claims I’ve seen that were in error that are overturned on remands from both the BVA and the Court, you’d think someone at VA would examine the SOC and SSOC very carefully to ascertain the correct facts instead of just changing the date and recopying it. For the most part, you will find your SSOC simply echos and rephrases the denial in almost the exact same terms and English as the SOC. You could rebut the error and submit everything needed to prevail and the SSOC will ignore the thrust of the argument and persist in reiterating the prior denial virtually verbatim. Many feel it is a therapeutic effort on a Vet’s part to even squander the time to send one in. In twenty four years I have never seen a SSOC rebuttal change the decision in the Vet’s favor. Actually, scratch that. I filed an Extraordinary Writ at the CAVC in January 2015 ( CAVC #15-112) and VA, as part of their repair order, decided to revisit the CUE claim and correct their misguided thinking. This was couched legally as a DRO review that admitted CUE … but I had not asked for a review. I was asking for a Writ to make them give what was evident from my first visit (CAVC #12-1980).
When I presented my case to a Veterans Law Judge face to face in 2011, I thought I had drawn a nice stick diagram of what was wrong with the VA’s denial and produced documentation that clearly supported my case. This was my SSOC rebuttal presented in person.This was a DRO hearing, an administrative review and a VLJ hearing all rolled into one for all the marbles. Thirteen months later, I read about my BVA loss and none of what I had presented was discussed. Nothing. The denial rationale was still based on the same misconception begun in 1994. There was no evidence of record to support it but, more importantly, VA simply refused to even discuss my legal theory. Well, that is, until we got to the CAVC. Suddenly, after 8 years it was crystal clear to everyone present that I wasn’t lying.
If you stay in this game long enough, you’ll eventually get one of these. SOCs and SSOCs are part and parcel of this business and they must be dealt with promptly like a M-26. There is no one thousand four. Five is right out. You toss it on three or you stand a good chance of wearing it. Years of effort go down the drain if you fail to timely answer the SOC with your Form 9. By law, you actually have one year to file the F-9 from the initial denial in spite of the sixty day suspense date following issuance of a SOC. There was a time back in the late eighties and early nineties where they would send out a SOC within three months of your NOD. In this day and age, you’d be better served to get the 9 in the mail before your sixty day suspense date is up to ensure VA doesn’t screw it up and say you failed to respond in a timely manner.
VA insists, as only VA can (and remain credible), that you can go on kiting new info into the claims file right up until the time they certify it for appeal, issue the§5107 last call notice, etc. that they will faithfully de novo review your new submissions -endlessly or until issuance of the VA 8. I’m guessing you could send in a buddy letter from your Congressman whom you served with that you’re telling the God’s own truth and still get a TY4YS and sorry, but yes we denied again.
Likewise, if you want to answer a SSOC, the thirty days are tolled from their date of the SSOC mailing. Again, do not wait until Day 29 to act and be sure to use certified mail to satisfy the common law mailbox rule if you choose to play this kind of poker game. They may or may not be lenient. Considering we live in an ex parte environment and everything is nonadversarial, we would never expect anyone to be a clock watcher. Welcome to the VA.