Compromise With Varo

[Ricky]

Just a general question. Sometimes a DRO will speak with a SO on a multi-issue claim and ask what will satisfy the appeal.

(EXAMPLE) Now if a veteran does not have a SO, would it be appropriate for the veteran to submit a statement and tell the DRO that approval of, for example issue one and three would satisfy the claim and all other 6 issues would be withdrawn if issues 1 and 3 were awarded ?

I have a veteran who has 10 issues on appeal. Two of them, which I am sure he will win at the BVA based upon his medical evidence, will result in an award of 100 percent. The other 8 issues are valid and will probably succeed, however, they are small non life threating issues which will result in 0 and 10 percent awards.

Thanks for the input.

[Berta]

"Now if a veteran does not have a SO, would it be appropriate for the veteran to submit a statement and tell the DRO that approval of, for example issue one and three would satisfy the claim and all other 6 issues would be withdrawn if issues 1 and 3 were awarded"

I recently did this-

I have 6 issues before the VA.

A proper decision -as I stated to the DRO- under Nehmer-for my main claim would make 3 of my issues moot, leaving only my main issue and 2 CUE claims.

I did this in response to a VCAA letter-the first legal one I ever got- but it was on a claim (I think a CUE claim) that I had at the BVA which was denied in 1998.

Last year the RO filed a Motion with the BVA to re-open this old CUE claim-but they filed the Motion wrong-

I had to use the election notice and VCAA letter I just got to draw them out on everything.

I will let you know how I made out.

The VA has had for over 3 years-the medical info they needed to award my main AO claim.

It just did not make sense to me, since that was my initial claim in 2003 and the one with the most evidence- for them to focus on this older claim.

I also stated that the CUE claims have enougn legal evidence to award also as they sent me recently a DRO review request form on those claims.

[Ricky]

Thanks we may try this with this claim. The award of his two main issues would be a 100 percent rating while 4 of the other issues are requests for increases. We may attempt to speed up the process and offer that the award of the two main issue would completely satisfy the claim and IF awarded at the DRO level all other claims would be withdrawn.

Like I said below the award of the claims which are new issues would probably result in SC but at the 0 percent. The increases are on HTN (already at 20 percent) back (already at 20) Skin problems (already at ) etc.... So SC is already established on these so to continue to fight would be a moot point if awarded 100 percent on his main issues.

Just need to figure out the best way to present this to the DRO-

Edited October 23, 2007 by Ricky

[Berta]

"Just need to figure out the best way to present this to the DRO"

Ricky I stated it in writing in response to a VCAA letter on a claim I had that was denied at the BVA (CUE) which the RO has been trying to re-open-for some strange reason.

I sent a copy of a letter from the ROs VSM defining the 6 issues I had and then told them (with a DRO now) that a proper award on Issue # 2 (my AO death claim)would render 3 other issues moot except for my 2 SMC CUE claims.

I raised the point that the AO claim preceded all the other claims and also had the most medical evidence.

They have to resolve each issue a claimant has-

but I firmly believe that a claimant must raise every potential they can for service connection.

And then they can withdraw the weaker issues for the main one- but I dont advise withdrawing anything until unless it is contingent on getting an acceptable award on one of the claims.

[timetowinarace]

My knowledge of the claims proccess is somewhat limited so keep that in mind. This is the third time I've tried to post on the subject but I can't explain it the way I'd like.

I think the only way to aproach this would be if the veteran is in need of a decision for hardship reasons. If pressure was on the DRO for a faster decision they would likely say developing these other claims was slowing down the decision of the major issues. Then the topic of setting aside or dropping these claims could be approached.

Otherwise, I think if you put an IF in there, it would give the appearance of bargaining. Meaning: I'll drop these claims IF you award those claims. Not a good idea in my opinion.

That's my best try on explaining my thoughts.

Time

[Berta]

A DRO is prohibited from bargaining -I agree with you there-

but I never saw anything in the regs that prevents a claimant from asking the VA to do something that makes sense and saves time-

something that is based on the evidence they have presented to the VA -

The VA is supposed to award when they have enough evidence to award under Benefit of Doubt or the claimant has provided a preponderance of evidence.

If the claimant has done that , then this is the claim the VARO should focus on.

It is the same thing as when I was awarded DIC under 1151 and my rep asked me if I was willing to drop my other direct SC claim at that time-which I did- in 1998-

The VA has to resolve every issue-

I dont see why a common sense approach would not make sense.

In my case if they award SC death under the claim they are focusing on-I would probably NOD the decision-that might sound nuts- but then again- my main claim involves Peace with Honor-so I want a proper decision on the main claim.

I am not really suggesting- If I do this will you(VA) do that

I am suggesting that the VA should resolve the most probative claim-in any vet or widows situation-

it just makes common sense.

Then again Time- I did this in a response to the first legal VCAA letter I ever got- I have waited for 4 years to be able to clarify my initial claim of 2003 and maybe it is not a good idea for Ricky to use-

but in his case if the evidence is there for 100% award- this renders the other issues as moot anyhow-

My claim in 2003 -had I been given a legal VCAA letter would have been resolved by now-the issues I asked the DRO to consider as moot when that claim is properly decided would have never been even filed if the VA had sent me a legal VCAA letter in 2003.

I guess I dont see it as bargaining- depending on the circumstances I see as asking the VA to do something that makes sense.

unless the VA or the vet wants to string those issues along some more.

Edited October 24, 2007 by Berta

[Pete53]

I was informed by by VSO at Waco that a Hearing Officer has a higher rating in the VARO than a DRO. I was surprised. At least my Hearing Officer was the same one who granted my 100% in 1996 and remembered my case very well. He said he would rule quickly so I will see.

I know that already having 100% that I don't have the pressure that many have but my philosophy has been even when I was 30% to go all out present my case and than put it on the back burner. If the VA requests something I go into high gear and comply as quickly as I can with a weekend to read everything over again in case I forgot or made a mistake. This has served me well.