VA PROPOSES LOWERING TIME LIMIT FOR FILING A RESPONSE TO A
SUPPLEMENTAL STATEMENT OF THE CASE -- Legal Analysis: "One
can see the VA ambush coming if the proposed change is made."



Here comes one of those proposed rule changes that will have a severe impact on veterans.
Below is the proposed change.
Following that is analysis of this from an attorney who is a regular VA Watchdog reader.
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2922. [bull] SUPPLEMENTAL STATEMENT OF THE CASE

Priority: Other Significant

Legal Authority: 38 USC 501(a); 38 USC 7105(d)

CFR Citation: 38 CFR 19.38; 38 CFR 20.302; 38 CFR 20.303

Legal Deadline: None

Abstract: The Department of Veterans Affairs (VA) proposes to amend its
regulations regarding the time limit for filing a response to a
Supplemental Statement of the Case. We propose to change the response
period from 60 days to 30 days. The purpose of the change is to improve
efficiency in the appeals process and reduce the time it takes to
resolve an appeal, while still providing an appellant with a reasonable
period of time to respond to a Supplemental Statement of the Case.

Timetable:
__________________________________________________ ______________________

Action Date FR Cite

__________________________________________________ ______________________

NPRM 09/00/07

Regulatory Flexibility Analysis Required: No

Small Entities Affected: No

Government Levels Affected: None

URL For Public Comments:
www.regulations.gov

Agency Contact: Laura H. Eskenazi, Chief Counsel for Operations (01C2),
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC
20420
Phone: 202 565-5978
Fax: 202 565-4035
Email: laura.eskenazi@va.gov

RIN: 2900-AM49
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Here is the legal analysis of this proposed change.


The VA is attempting to shorten the period for appeal and to confuse the veteran on new issues first raised in the SSOC. The difficulty for a veteran receiving an SSOC is that the veteran may not know whether the various issues of the SSOC are being adjudicated for the first time or not. The VA is clever and devious in the use of SSOC’s to lull the veteran into a belief that a previously filed Form VA9 (Appeal to the Board of veterans Appeals - BVA) is sufficient to appeal all issues to the BVA. That belief may not be true. The proposed change will further confuse veterans.

Example: Veteran fractured a lumbar vertebra on active duty leading to a VA service connected award of 30% following military service. The vet filed a Notice of Disagreement (NOD) that the 30% award was not high enough. The RO denied the increase and issued a Statement of the Case (SOC). The veteran responded by filing a Form VA9 to appeal all issues to the BVA. The veteran faithfully sent in his continuing medical records about his back to the Regional Office after the SOC was issued. One of these records diagnosed that the veteran’s back pain radiated down the right leg to his foot. The RO issued a Supplemental Statement of the Case (SSOC) with two issues: (1) “Entitlement to increased rating for fracture of the lumbar spine” and (2) “Entitlement to service connection for increased rating for fracture of lumbar spine causing radiculopathy”.

Issue number (2) is a new issue for which the veteran never gave an NOD. Unless the veteran files an NOD within one year of the SSOC date, he has failed to appeal issue number (2). The BVA need not issue a decision on issue number (2).

The better practice when receiving an SSOC is for the veteran to file a new VA9 for all SSOC issues AND to file a new NOD for all SSOC issues. This reasonable response infuriates the Regional Office because they do not know what to do with the paperwork. They may discard it upon receipt. That “discard” possibility means that a veteran must have a secure means of delivery of his paperwork to the RO.

Regrettably, veterans must presume that the RO will not act ethically with the veteran’s paperwork received in ordinary mail. All veteran paperwork sent to any Regional Office should be sent CERTIFIED – RETURN RECEIPT REQUESTED.

The VA should try to follow the example set by the Social Security Administration (SSA). SSA has a standard time period for appeal at all levels: Sixty days plus five days if the SSA decision was mailed. Ordinary citizens can understand that timeframe. It is always 65 days.

By contrast, the VA has an assortment of complex time periods to appeal a VA decision: One year to file an NOD after initial RO decision; 60 days to file a VA 9after an RO SOC; No response was necessary to an SSOC if all issues were adjudicated in the SOC; 120 days to appeal to the Court of Appeals for Veterans Claims (CAVC) after a final BVA decision; and 60 days to appeal to the Court of Appeals for the Federal Circuit from CAVC. Some appeals like overpayment issues must be filed within 30 days. This confusion is by VA design. (Increasingly, veterans are seeing VA envelopes stamped with a postage date earlier than the decision date inside the envelope.)

One can see the VA ambush coming if the proposed change is made. Adjudicators in the RO will identify as few issues as possible in each initial decision. The veteran will file an NOD that issues were ignored. The RO will mail the SOC denial of the initial issues while ignoring the additional issues. The vet will file a VA9 citing ignored issues. THEN the RO will load the SSOC with the ignored issues. Result: The vet only has 30 days to appeal all those ignored issues instead of one year. Of course, it is anti-veteran, but clever.

What is really interesting about the proposed change is it CREATES A MANDATORY RESPONSE from the veteran without defining the response required. Now, the veteran does not have to respond to an SSOC if all issues were identified in his VA9. If the proposed change is enacted, what response will be required? Veterans should be suspicious that whatever response is submitted will be insufficient for the VA.

This effort is much more than VA mischief tinkering with the Reg’s. It is a continuing sabotage of disabled veterans seeking rightful benefits at a time when the nation is at war.