What is it about completing a Form 9 substantive appeal for your claim(s) within that sixty day window that seems so insurmountable? What seems so daunting from a pro se claimant’s perspective that provokes dread, confusion and indecision on what or how to construct it? Let’s look at the end product and what you hope to accomplish. Obviously you have not made your case(s) up to now or you’d have a framed VA rating document hanging on your trophy wall instead of an SOC or SSOC.
First, in a complete about face, I must candidly admit there is a new philosophy about how to file claims, how to object to denials and how to go about this business here of completing your substantive appeal. The new approach is centered on the documented inability of VA employees to understand what we mean when we say “notice of disagreement”. Due to almost identical phonics that sound out exactly like ” Please, sir. I wish to reopen my claim(s)”, there has been much confusion over the years at Regional Veterans Service Centers. Hence the plethora of new forms.
To solve this almost century-old dilemma, VA’s cogent farthinkers invented the new Form 21-0958 Notice of Disagreement form. Our former VA Secretary, Ric Shinseki, bless his pointed little chia head, did finally topple the applecart of paper claims files at the VA. Let’s face it. VA being one of the last dinosaurs in this new century, VA raters everywhere quailed at the very idea of entrusting this to computers as word-searchable .PDF format. It would make a lot of jobs superfluous. Once you code them little critters as a 0 or a 1, the mistakes go down and the success rate goes up.
Before you rush out to celebrate and schedule a $300,000 parade, realize that the very same M21 (1MR) computer with Sigma 6+ Kaizen updates (VBMS) is still not your BFF. I consulted with Marine Tom “Tombo” M. of Spanaway Washington for the correct Marine translation of BFF. It’s politically correct as “Best F*****g Friend” just as I suspected. Best Friend in Foxhole was also an accepted translation.
I have been asked to publish this information as an aid to all of you. Up to now, I felt it was ill-advised. Mea Culpas are in order and here’s why. Face this head on, Veterans. We’re being herded into the new electronic frontier with the VA, too. Gone are the days when I used to put the Tickle Me, Elmo stickers in the upper right hand corner of my Notices of Disagreement. Gone, too, is the famed Roadrunner and Wile E. Coyote stationary to frame my Form 9s on in all their glory. VA’s new VBMS word-searchable .PDF ( which is a shortened VA abbreviation for “Doc(ument).Pretty Damn Fast”, is the newest cutting edge VA Informational Technology at its finest. Most of us discovered this function on our Adobe 2 programs years ago B.O. (Before Obama) up there at the very top. I personally consider their discovery of the function one small step for Vetkind and a giant leap for VA. Of course, we now have to implement remedial spelling classes for raters or it will all be for naught.
It doesn’t matter how we get there to a win. The important tenet is to get there in a timely manner. Fully Developed Claims are a tenuous way to do this unless you are anally perfect and the stars align properly. Without proper guidance, and I pointedly mean VSO -“supervised” guidance, this can end up headed for the rocks before it is even filed. You have to learn how to do this to win unless it’s an obvious claim like you left your legs in Landstuhl.
Why isn’t it called the Form 21-9?
The Form 9, VA 9 , 1-9 (prior to 1994) or whatever your nickname is for a substantive appeal, the new paradigm is framing the substance of your last and best argument for a grant as large as life and twice as natural on the front page of the actual physical VA document. Again, word-searchable is the operative clause. You may recall if you read my book that it is very important-paper or via .pdf- to have the info on the front page where it’s read again and again until someone’s little light bulb comes on over their head and they glow with the sure knowledge gained by understanding GSW + Transfusion= Hepatitis C.
We are now funneling all our submittals to either Cheeseville, Wisconsin or Newnan, Georgia. The reason is simple. They have set up a massive scanning process to convert all this into the new VBMS format. Eventually, in 2028 when VA equips all their Regional Offices with this balky product, the process of really putting a dent in the claims process will kick in. There is just one minor problem as I write. There are millions of our files at our Regional Offices still in analog (paper format). In addition, a lot of us Vietnam Vets and the succeeding peacetime eras all have handwritten “pencil puke” as we call it in Vet parlance. Illegible notes from doctors with atrocious handwriting abound in our old files. For us, these are albatrosses and obstacles to winning in a timely manner. They require the old analog search by eye-something VA raters are not well-known as “self-starters” for.
Roads? We don’t need Roads where we’re going.
As I carefully enunciate, word searchable .PDF format is the wave of the future-the only wave. For those World War Two, Korean War and, to a certain extent, the younger generation of draft-age Vets who are now in their early sixties like me, there are going to be problems. Not all of us made the transition from landline to cellular. Fewer still- far fewer, I might add- have made a successful transition to the internet/Windows world. Being able to “like” someone on your Facebook page does not an electronic Warrior make. Mastering any format is daunting at the sunset of life but that is what VA is asking you to do. You must relinquish pen and paper and embrace a Logitech keyboard. Believe me, it’s like learning how to speak Mandarin when you suffer Alzheimers. Those who cannot or will not transition are at the mercy of the VSOs as law dogs may not tread here until the first loss.
Electronic Forms Filing at the input centers can be done via the old Indian smoke signals method of wet blanket and green wood. I refer to FAX. Be careful as the document quality is only as good as the cable/landline it is transmitted over. If you wish yours to be a perfect filing for induction into the .PDF, you might consider sending it by snail mail. The Janesville Wisconsin folks oddly have no confirmation setting on their fax machines that shoots you back confirmation of reception and a Five by reading on quality.
Newnan Georgia does so. Make sure you get it. VA will always drag out the Common Law Mailbox Rule and say they never got it if you have no proof. Always remember that you are a second class citizen and must prove all over to VA that you are worthy of credibility. America trusted you with a machine gun and hand grenades way back when but you have to be”Vetted” all over again.
If your document submittal is over 15 pages, you are asked to mail it in. This has something to do with how many fax machines they have and tieing up the line with a 60-page NOD or SSOC rebuttal. If your submittal is post-decisional and includes new and material evidence, I urge you to do it by mail with green card (return receipt requested or CM3R). Until we can cure a decade or two of VA intransigence and shredding parties, it behooves us to keep one small, tangible green token of proof that we, ourselves, possess proving our bona fides. VA cannot lose that. VA cannot deny that. It cannot get lost in another Vet’s file. If you wish, double down. Go ahead and FAX-file a twelve pager to Cheeseville but I advise the CM3R backup mode.
The word-searchable .PDF function was employed on my Record Before the Agency (abbreviated RBA- my c-file as of April 11, 2011). The BVA was obligated to transmit it to the Court, my attorney and the Office of General Counsel (OGC 027)-the ones defending VA’s good name. This gives everyone the same .PDF document to refer to when discussing the case. Most importantly, it is the ability to ricochet around in the c-file (word-searchable) looking for things. Once upon a time VA used to collate the RBA into a semi-sensible time filing mode. Everything was reproduced in order of occurrence. No more nowadays. Mine had stuff from 1989 interspersed with 1994 and 2007. It requires you to view each and every page to identify when, where, why, and usefulness. This is the timeline I often refer to. If you have a timeline already created in preparation of this, adding the RBA as an overlay is child’s play.
Your Form 9 should be a model of clarity. If you are fighting for things that should by rights have been granted aeons ago, you can get a bit more proactive and take it up a notch. Our in-house resident rainmaker instructs me to put “belt and suspenders” on it to prevent shrinkage of the filing. This is clear reference to our long-suffering Navy Veteran Keith Roberts who was keelhauled by VA and put in prison. Apparently, “page 2” had mysteriously disappeared from his NOD and it left a chasm of disaster in its wake. The American Legion VSO failed to notice it and it was not discovered until after the denial and the RBA was produced. By then it was too late to introduce more evidence. The RBA, as a record, was sealed. I was advised to put handcuffs on my filing and introduce the “thirty day letter” instructing VA that they now are put on notice that if my claims remain unresolved past Pearl Harbor Day, I am returning to the Court of Veterans Appeals, represented this time by counsel. That will mark twenty years and nine months from when I filed my original claims for Hep. and PCT.
There is an important difference in what I am doing here. This belongs in your Tips and Tricks File. If you or I represent ourselves pro se (or hell, for that matter even if we were dragging a VSO boat anchor along for the ride, too) we get the Presumption of Stupidity and must be accorded kid gloves treatment. This means VA has to entertain every flight of fancy, every wild theory of entitlement and “a far more nuanced reading of all the facts” (rarely done) to be sure they are standing on firm, legal ground- if such a thing can be found at VAROs. Our presentation and our contentions have to be “liberally construed”. It has to be “accorded great deference” for legal sufficiency as we do not have that juris doctor appendage after our names. In a word, we can step all over our neckties, change course in mid-stream and evoke a new contention at will and VA is constrained to accept that we’re blithering idiots. If we accidentally discover the weakness of their position late in the proceedings under a completely different theory as I did here, we’re still in the catbird seat. It’s the law and VA doesn’t like it but they are constrained to bite their tongue and smile.
A Form 9 is that last blast to list all the errors, as well as all supportive evidence to make it easy to point to. Once you inform VA of this contention on the record, they have to rebut it with facts. If they cannot, they know they’ll lose at the CAVC. Worse, by not addressing it makes it cannon fodder for a remand back to the BVA to explain why they forgot to address it.
As I said, I’ve never been happier to be wrong. With all that said, remember the nexus and keep it Holy. Get one and keep it very close to the DBQ that concerns it. The DBQs still do not have a box for this in spite of Under Secretary Hickey’s promise in November 2011 to Representative Bob “Skirts” Filner with her now famous statement “Representative Filner, trust me when I say we’re just trying to use up the last of the electronic forms before switching over to DBQ 1MR to save money on printing costs.” Hey, if you’ve heard all the hooey coming out of Acting VA Office of Inspector General Harris’ piehole lately about Phoenix, this “Hickeyism” should be extremely plausible. I’ll be waiting for her to explain why it still takes 15 months/98% accuracy to get a decision out of her ROs come 2015. Assuming arguendo that she’s still there and hasn’t chopped the throttle, popped her binders, hit the canopy release and rolled over, that is.
This is LawBob Squarepants’ idea of putting belt, suspenders and handcuffs on all the words. By specifying only one VA ratings decision (October 1, 2008) it narrows the CUE to one event rather than several. By utilizing the latest on the Presumption of Regularity, you saddle them with what the rater found and stated. They are forbidden to go off the reservation and come up with their own rating theory and percentage. If they purposefully choose a rating code that does not permit 100%, you jerk their choke collar and set them aright. Mostly, with a failure to adjudicate for so long such as this one, as a Veterans Service Center Manager, you want to put paid to it and move on. Kicking this can down the road is now going to end up with it being kicked back up to the CAVC-exactly the wrong place to be if any snooping reporters from CBS are milling about. Twenty years and 9 months to settle a claims kinda pokes a hole in the VBMS myth of 125 days and 98% accuracy.
Seventeen pages but a good legal read if you are shopping for Presumption of Regularity law for CUE.
P.S. On my SOC the “In reply, refer to:” said 346/Appeals/DRO/BU. Should you wish to find out who “BU” (your DRO’s initials) is, go to my little widget Who’s who at the VARO .After that, scroll down to VBA as the agency you wish to look at, choose your state and county and then scroll down the employee list until you find a BU with at least a GS-10 apprentice DRO rating. And Voila:
Bummer. He hasn’t been getting any bonuses. No wonder. His SOC was a model of ignorance and stupidity.