ptsd Had Dro Hearing Today In Buffalo

[Quint7]

I had my DRO hearing today in Buffalo. The one to make up for the scheduled one in October. Issues were increasing my right knee to 20%, SC my IVDS/DDD and I wanted to talk about a possible CUE over my knee claim from 1994 fro my knee.

What a JOKE!

I got there 45 minutes early and the NYS Vets rep met with me (never met him before) and he said that he had reviewed my file and asked what I was looking for out of the hearing. I told him I wanted the above and he said that the back looked pretty good as far as that and that the knee would probably require a new exam. He didnt think the hearing officer would talk about the CUE for EED. I felt from the get go that I knew more about VA regs, etc than he did, but whatever. He also encouraged me to do an "inofficial" hearing where there would be no transcription of the taped portion "asthis will drop a month or two off of the results and if we dont like those we can always request a formal hearing". Ummmm, no thanks, make it offical!

We met with the woman who was the hearing officer, I was sworn in and the tape machine went on. She read some statement and he did to, blah, blah, blah. She then said "so tell me what you want about your claim". I looked at him and he said "go ahead". I explained about my back, making sure to mention my IMO from Dr. Bash, the Nexus letter from my private doc of the last 10 years and the VA training Letter on IVDS/DDD. She said 'when did you first hurt your back?" and I asked if she meant when did I hurt it or when was I seen for it? She said "hurt it". I explained about my job in the Marines and stuff I have posted a million times on here and said repatedly that i was always told to tough it out so I did other than the one documented injury that resulted in being told to tough it out by the docs. I said that my docs all said that for my age the damage had to happen during my enlistment and that Training letter said that and she just kinda nodded along.

We went on to my knee and I explained that I had atrophy, patella-femoral syndrome, my knee cap rides to the side of my leg, etc. and she said "you need another exam". I said that I was having spinal fusion on Jan.7th and she said "well you wont be getting the exam before then, you will need to let us know when you will be able to get to an exam so we can re-examine the knee." I said again that it is documented that I have X,Y and Z and she said that "ROM is about the only thing I will be rated for, we dont rate all of those seperately". I just kinda sighed.....

She then went to wrap up the meeting and I asked the Rep about the CUe and he said "oh... I almost forgot". I explained the situation (again, posted it before, wont bore you) and she cut me off saying "it was a new claim and that it had to be treated that way. You can fill out the paperwork on the way out". I asked a couple of questions and she went with the new claim line.

I was about to stop and then remembered that there was missing stuff in my copy of my Cfile and she said "that I had to request a file review". I asked if I could just see the file (right there in front of her.... unopened) and was told to ask for the review. I said OK and she ended the meeting. 30 minutes, most of it me talking.

She jotted some stuff down as I spoke but maybe 5 lines if that. My rep really didnt say anything. She wasnt agressive, defenseive or anything, polite but to the point. No questions from her but I tried to explain my MOS and how it was physically, etc.

My rep and I went to his office and he said it went well. That expalining my job, etc. wasa really good move as it explained how my back could be like it is instead of just leting her read stuff. He also said that i should wait in the CUE (he agreed that is the way to go, not the "undeliverable C&P letter route I had thought of, thank you Calie, Berta and Rentalguy!). His thought was "if they give you the 20% now, then it mustve rated 10% from service (which is what Im seeking). He also said a new claim will hold up the results of the DRO... which they told me about PTSD and was a total crock of ****...... but I think I will hold off on the CUE and Cfile review to just let the system play out. With the holidays and surgery coming up I have other stuff to worry about.

On a lighter note, my VA clinic has been more than helpful with getting ready for my surgery even though it is being done by an outside doc through my insurance. Most of the people kow my doc and the one today that wrote my stuff up to get a post-op brace through VA not only knows him well, but encouraged me to go through VA for phys. therapy as it iwill be no cost to me. Never thought of that!

So....... I will eventually request a copy of the transcript as my rep said it would be part of my record and therefore I should be entiltled to a copy. he also encouraged me to file for TDIU due to PTSD and I dont want to think like that. If I get to that point I will..... I hate that every time I meet with these reps they say that.... like Im a fool to keep working.

OK...... time to go snowblow the driveway.

[carlie]

I always thought Conferences are Informal - like telephone calls

and Actual Hearings are Formal.

carlie

Chapter 5 - Appeals

http://www.warms.vba.va.gov/M21_1MR.htm

Section C. Decision Review Officer (DRO) Review Process Overview

b. DRO Duties

The table below lists the duties of a DRO.

Notes:

· The DRO is a member of the Appeals Team but is under the direct supervision of

the Veterans Service Center Manager (VSCM) or assistant VSCM. The Appeals

Team Coach may assign work to the DRO.

· The composition of the local appeals team may vary. At some ROs, the team

may consist of only DROs, while at others, it may include

- DROs

- RVSRs

- VSRs, and

- Claims Assistants.

Duty - Description

1

Hold informal conferences and formal hearings.

2

Evaluate the evidence of record including the need for additional evidence as a result of information obtained during the hearing.

3

Make a decision.

4

Make direct contact with appellants and their representatives.

Edited December 18, 2008 by carlie

[Berta]

Quint-unfoprtunately- as I understand the DRO job description in M21-1 -the DRO could not have any jurisdiction over the CUE you mentioned and had to focus only on the SOC and the medical evidence regarding the specific issue you wanted a DRO review for.

The OGC told me recently they could do Nothing about the fact that a NYS rep and a DRO deliberately ignored my evidence at a conference specifically set up by the VSM because the same DRO had ignored this evidence before.

We are being manipulated by reps as well as the ROs.

Still- I expect that practice to stop.Too many vets and widows contacted the H VAC and the Sub Committee with stories they could document as to how -even if our evidence didnt end up in a shredder-it still remained ignored.

Our RO-Buffalo- has a dynasty there- the powers that be- who defy basic VA case law all the time.

As I mentioned before ALL of my legal evidence for my CUE claims was totally ignored by them and they put my AO claim evidence into the CUE file.

Luckily I was able to replace and add to all of my medical evidence before the AMC got a medical review.I also wrote to the AMC director with my concerns- will post that in separate AMC topic-

my point here is -as you can tell- these reps do piss poor work and are unprepared for these hearings.

But that can be compounded by a DRO who simply will not read the evidence properly.

I named names at Buffalo to the VA OIG with the proof of what they have done to me for almost 6 years.I also told them of what my past claims were like- sameo sameo- the evidence was continually ignored and withheld from the opining VA doctors and even withheld from the Chief of Cardiology in VACO in DC.The Buffalo RO picked and choosed what this doctor would get -until I found out.

Can you imagine what our legal system would be like in this country if defense or prosecution lawyers could deliberately withhold evidence from each other and from a jury?

If the results of this hearing reveal that they have ignored your evidence for the main claim the hearing was about- make sure you follow the VA Watchdog guidelines and rebutt them strongly -suggesting the VARO must have destroyed or lost the evidence and you want a better and proper decision based on VA evidentiary responsibilitites as spelled put in M21-1.

I am holding off on using the "October Incident" Fast letter for the way they handled my CUE claims until I get a decision on the AO claim at the AMC.I hate to think that my file would even have to go back to Buffalo.But it will at some point for the CUE claims.

If I were you I would hold off on any CUE potential (you could sure set it down on paper and get the legal ducks in a row)- but wait until you get a decision out of this hearing-as there is no time limit on CUE claims.

And they sure cannot handle much at a time at our VARO.

Edited December 18, 2008 by Berta

[spike]

..."The M21-1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond

those contained in statute and regulation."....

November 19, 2007.

Gordon H. Mansfield,

Acting Secretary of Veterans Affairs.

The above C&P was taken out of the Federal Register: dtd 27 November 07 via GPO Access DOCID: fr27no07-132

notice pages 66218-66219.

.....

I put this out there absolutely not to be ignorant to those who believe in the M21-1. However, to put make it

understood that the M21-1 is not a law, it is not a regulation. There are two binding written authorities.

There is the 38 USC (United States Code) (Law) and the 38 CFR (Code of Federal Regulations)

Does anyone remember when you were in the military...There was an SOP (Standard Operating Procedures)

probably someone wrote before you, or written by authorites above you. Well the M21-1 is just that.

Procedures to give guidance to do a job. They can be changed. They are not law binding. While some cases

may be won, it is more likely because the particular case is won on the basis that there is a regulation or

law that the M21-1 was based on in the USC or the CFR so that the M21-1 did not violate the LAW or Regulation.

However, it also indicates the Veterans Affairs INTERPRETATIONS of the Regulations. As veterans ourselves we

often find ourselves disagreeing with the interpretations, I am sure.

Here is my opinion. If you were going to court, and your claim was going before a judge....

would you just go without representation? Or would you find a passionate, respected representation

who you knew that had your best interests? Or would you go and take your chances

without an attorney and maybe missing something a deadline, a fact, a reg and not get a favorable decision.

Maybe there are some so's that your just not matching up with, but there are some really good so's out there

who will do a great job who really do want to help,

Edited December 19, 2008 by spike

[Berta]

Interesting comment. I use M21-1 a lot.

As a matter of fact when I pursued my past 1151 claim-I found in M21-1 ( the VA doctor's version of M21-1 dated 1988) the exact motive as to why my husband did not get adequate VA medical care.

This page from M21-1 was evidence for both my 1151 and FTCA claims.

I dont recall how the VARO addressed it for the 1151 award. Actually they focused primarily on the FTCA findings.

It could have been Very probative as to the FTCA award.

I forget if it was.I did not really have to prove motive but the M21-1 statement added significant credence to my charges.

I feel that M21-1 evidentiary statements as to how the VA is supposed to handle our evidence is not only the handbook and guideline for VA adjudicators but the same documentation we claimants and advocates can and should hold them to. Since this is the ‘handbook’ of GS 12-16 or whathaveyou federal employees to use to determine and control our claims-I use it too. And I have put the following M21-1 citation into my most recent statement to the AMC and it helped me get a fast review of what appears to be all of my evidence that was ignored for the past 5-almost 6 years.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

And I got the VSM to CUE a decision because the DRO did not comply with her M21-1 guidelines in a prior DRO review.

Then she failed to comply again-

and I told the IG.

We have rights in 38 CFR that M21-1 is supposed to assure us that we get.

Just my opinion I guess and I cannot live without M21-1.

[Quint7]

Spike, although I hesitate to list names on here, I will. What the hell......

My regular rep here in Rochester is K.R. I have had little to no contact with him during my claims and I believe that he took a 3 or 4 month sabatical that i was unaware of because we never talk. He seems very knowledgeable, but has taken the "let's wait and see" approach to everything. I very well might have lost my job by now if I had held off on my PTSD issues by taking his advice. We never met to go over my upcoming DRO, he just called to make sure I would be there.

The NYS rep who was in the hearing with me was M.A. I had never met him or talked to him before the hearing. he was, again, a very nice guy and seemed concerned for me issues, but had never seen my file before that morning and definately didn't have a full understanding of the issues I wanted addressed. He pretty much let me do all of the talking but as I said, he thought that I did a good job. I don't really have a problem with his advice after the meeting about a CUE, but I guess if I was gonna go into a hearing I would review the statements in a vets file even more so than the evidence as that would give me an understanding of what the vet was seeking in his own words. I had to explain what my job in the Corps was, how I got hurt, etc. all stuff I wrote in my statements, even including pictures.

The DRO was T.D. She was nice and appologized for a previous hearing being cancelled at the last minute with no notification to me until I had driven to Buffalo. I appologized for having multiple copies of many papers in my file as I thought I would just keep bombing VA with the same stuff over and over. She took only 5 or 6 lines of notes and didn't ask more than 2 questions.

Don't know if any of that matters...... like I said, I'll be layed up all winter so I really don't need to stress about it. Se La Vie.

Edited December 19, 2008 by Quint7

[Pete53]

I hate it when you go to a Hearing with someone who has not cracked your file till you walk into the office.