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Cue Than Find That The Claim Is Still Pending In Appeal Status
Posted 28 March 2011 - 08:51 PM
Case: Jones v. Shinseki, CAVC No. 06-2036
BVA Decision: March 16, 2006
CAVC Decision: June 18, 2009
Key Issue(s): When is a claim that was appealed in a Notice of Disagreement (NOD), but for which VA never issued a Statement of the Case (SOC), decided?
Law: 38 U.S.C. §§ 7104, 7105
What was decided:
The Court decided that where a veteran files an NOD for a claim but VA fails to issue an SOC in response to the NOD, the claim is resolved in a later appellate adjudication of another claim, where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar.
What this means to veterans:
A Veteran has a right to an appeal of a claim denied by VA. If a veteran submits a proper NOD and VA does not follow through with a SOC and the rest of the appeal process, the claim remains “open” until and unless VA properly resolves the appeal. Claims which VA has “forgotten” keep their original effective date and so can have accumulated very large retroactive payments. Any veteran who believes that he or she has filed an NOD but has not received a VA acknowledgment of the NOD or a SOC after a reasonable time (several months at least) should review their records and submit a copy of the NOD to VA along with a request for an investigation into what happened to the original NOD. If VA cannot provide documentation of a final decision on that appeal or another claim stemming from the same condition and for the same disability, the veteran should request a decision on the appeal and an effective date of the date that the claim was originally filed.
this is what happen to my cases and cant get them to look at this.