ptsd Dro/denovo Or Bva

[Shark]

Just read a post that makes me question where I am at. I applied for TDIU and am SC 80% total with PTSD at 50% and the rest Agent Orange stuff. I was denied last October and filed a NOD. My first DAV VSO had me go DRO, then I got more evidence (a letter from my VA Psychologist) and another DAV VSO changed it to a traditional appeal. I still haven't received a SOC, and the Reno VARO told me that it can take up to a year to receive.

Should I leave it the way it is, or send in a form 9 and request DRO?

[rosypalm]

Just read a post that makes me question where I am at. I applied for TDIU and am SC 80% total with PTSD at 50% and the rest Agent Orange stuff. I was denied last October and filed a NOD. My first DAV VSO had me go DRO, then I got more evidence (a letter from my VA Psychologist) and another DAV VSO changed it to a traditional appeal. I still haven't received a SOC, and the Reno VARO told me that it can take up to a year to receive.

Should I leave it the way it is, or send in a form 9 and request DRO?

I would go the dro route thats where I m at. If you go the traditional appeal they have to move your file out of the VARO.

[Wings]

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If your claim has been "certified to the BVA", you can not go back to the RO for a DRO process. You can however, continue to send evidence to the BVA until they make a final decision.

You can even ask the BVA to REMAND back to the agency of original jurisdiction (RO) if your evidence is something that the RO should have adjudicated in the first instance (CUE claim for example).

If your claim has already moved on the Washington DC, your best approach would be to continue to send evidence, arguments, case law, etc. to them, until you get a decision. Hope this helps. ~Wings

Edited June 28, 2009 by Wings (see edit history)

[Berta]

Wings is absolutely correct-continue to send evidence to the BVA.

The last piece of evidence I sent was in March ( like a dope I overlooked a critical word in my husband's autopsy for 14 years-I didn't think it was important but it could have won the claim years ago-) and when I sent this to the BVA, their award came 4 weeks later.

A DRO review (my claim had two of them and the DRO failed to consider any of my evidence-) can produce in some cases an award-but the only place where claims are being fully read these days is at the BVA.

If the BVA denies a claim -then the only route is the CAVC.

The CAVC will not consider any new evidence so it is by far best to keep sending in evidence as much as you can at the RO and the BVA level.

I still kick myself in the butt- in all these years I breezed over a medical term used to describe the autopsy slides of my husband's heart.I knew exactly what the other medical stuff meant although that took a lot of medical research.

At the very last minute I googled this term- myocardial fibrosis-

and found that this is due to hyperglycemic damage to the heart muscles.It was positive proof that he had diabetes and diabetic cardiomyopathy.

We cant overlook anything.I supported my claim and supported my IMOs as well with additional evidence the IMos didnt cover.

CAVC only looks for legal errors to remand or in very few cases to make an award.But the long waiting time for a claim to get a proper decision gives us the time to continually research and support the claim with evidence.

It isn't fair because time is the enemy of every disabled veteran.

By even getting a good friend or college student to read over your stuff- they sure might see something you missed.

My DIC award under 1151 was based 99% on the fact that my daughter decifered one word on a medical certificate from the local VA ER- documented years before my husband died.It was extremely hard to read but when she did this- then I began to read up on the other strange medical symbols on the same ER medical record that were Greek to me.and then within a month I filed Sec 1151 and FTCA for wrongful death as the ER medical cert in the long run was what proved VA had caused Rod's death.

It pays to use the internet to google anything or any medical symbol that you dont understand.

[john999]

Wings

I did not know that once you were certified to the BVA you could not go back and have the DRO look at it. I keep learning things here. My conception of a good way to go is the following: RO rating, NOD, DRO Hearing, BVA and then Court. That gives you four shots at it and it will surely be remanded from BVA or Court back to the RO at the end of this four or five year journey. Meanwhile you grow old, die and are reincarnated as a fly buzzing around the RO's head. You have to be a Buddist to really win at the VA.

[Shark]

x

x

x

If your claim has been "certified to the BVA", you can not go back to the RO for a DRO process. You can however, continue to send evidence to the BVA until they make a final decision.

You can even ask the BVA to REMAND back to the agency of original jurisdiction (RO) if your evidence is something that the RO should have adjudicated in the first instance (CUE claim for example).

If your claim has already moved on the Washington DC, your best approach would be to continue to send evidence, arguments, case law, etc. to them, until you get a decision. Hope this helps. ~Wings

No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be. I have an attorney, but he is being uncommunicative for some reason. It kills me because I have a law degree so can usually figure this stuff out, but this is new ground for me. He (Mark Lippman from Veterans Law Center) wants to wait to get my C-file (it has been 3 months since he requested it) before he comments on anything, which is understandable. But, I don't want to miss an opportunity to straighten this out and request a DRO before it gets certified. One problem that I see is that my best evidence was submitted with the NOD, and right afterwards. Will they consider this evidence on a DRO or only the evidence up to the denial?

Thanks again to everyone for all of their input...you are providing a great service to all veterans...especially those of us that are a little crazy and are super frustrated with this process! I have only been dealing with this for a few years and really feel for those of you who have been battleing for over a decade to right these wrongs! It helps to hear the words of those of you who have gone to the battle before us!

[Wings]

No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be. I have an attorney, but he is being uncommunicative for some reason. It kills me because I have a law degree so can usually figure this stuff out, but this is new ground for me. He (Mark Lippman from Veterans Law Center) wants to wait to get my C-file (it has been 3 months since he requested it) before he comments on anything, which is understandable. But, I don't want to miss an opportunity to straighten this out and request a DRO before it gets certified. One problem that I see is that my best evidence was submitted with the NOD, and right afterwards. Will they consider this evidence on a DRO or only the evidence up to the denial?

Thanks again to everyone for all of their input...you are providing a great service to all veterans...especially those of us that are a little crazy and are super frustrated with this process! I have only been dealing with this for a few years and really feel for those of you who have been battleing for over a decade to right these wrongs! It helps to hear the words of those of you who have gone to the battle before us!

If I were you, I just might request a Personal Hearing with the Decision Review Officer. The DRO is supposed to conduct a "de novo" review of the claim, and if they would allow you the time, you could show them where they made the error, and be up close and personal. I think more gets accomplished this way. I'd wanna tape record the hearing as well. Just my 2 cents. ~Wings

[Ricky]

Just read a post that makes me question where I am at. I applied for TDIU and am SC 80% total with PTSD at 50% and the rest Agent Orange stuff. I was denied last October and filed a NOD. My first DAV VSO had me go DRO, then I got more evidence (a letter from my VA Psychologist) and another DAV VSO changed it to a traditional appeal. I still haven't received a SOC, and the Reno VARO told me that it can take up to a year to receive.

Should I leave it the way it is, or send in a form 9 and request DRO?

My first question would be:

Have you received an election letter from the VA as of this date? This is a letter that explains the DRO process and the traditional process. A vet will get this even if he/she asks for a DRO review in his/her NOD.

What procedure did the second VSO use to "change" to the traditional process? And why did this idiot do such a thing. Run from him/her quickly...

You only submit a form 9 AFTER receiving a SOC. This is why I question the action you described in dealing with the 2nd VSO. What you need to do at this point is prepare and send a statement in support claim explaining that although the 2nd VSO somehow ? requested a traditional appeal it is your desire to resolve the issue at the RO, therefore, you request a DRO review with a DRO hearing at the local RO. Wait about 30 days and then call/use IRIS to verify that you have a DRO review pending.

Ricky

[Philip Rogers]

Shark - if you submit any new evidence to the BVA be sure to waive review of that evidence by the Agency of Original Jurisdiction (AOJ), otherwise the BVA will remand it back, to the RO, for another decision. This would probably add a few yrs to your claims process. I know, I made that mistake many yrs ago.

pr

[Berta]

"No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be."

??? You filed a NOD but you expect a SOC?

Have you already received a I-9 form? I am confused here-

but to get back to your claim-

is the disability you are claiming due to AO listed on the Agent orange presumptive list?

I believe someone else asked and I am curious too- did you receive a VCAA letter with a highlighted statement -telling you exactly what VA still needed?

It is not unusual for it to take a year to get a SOC.

I was told that here in NY they color tab NODs by date and when a year passes they read the NOD- and then take their time with the SOC.

But a proper VCAA election and return of the VCAA election response form -with whatever evidence they asked for can make that go a little faster.Even a lot faster.

[Shark]

"No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be."

??? You filed a NOD but you expect a SOC?

Have you already received a I-9 form? I am confused here-

but to get back to your claim-

is the disability you are claiming due to AO listed on the Agent orange presumptive list?

I believe someone else asked and I am curious too- did you receive a VCAA letter with a highlighted statement -telling you exactly what VA still needed?

It is not unusual for it to take a year to get a SOC.

I was told that here in NY they color tab NODs by date and when a year passes they read the NOD- and then take their time with the SOC.

But a proper VCAA election and return of the VCAA election response form -with whatever evidence they asked for can make that go a little faster.Even a lot faster.

Hi Berta,

Thanks again for all of your assistance! Here is the story, I received a 50% PTSD rating in July of 2008 for a claim that I filed in July of 2007. I am 80% SC in total, the balance being AO related. I applied for TDIU in July, 2008 and was denied in October of 2008. My DAV VSO filed a NOD asking for DRO in October of 2008. I took in more evidence in December of 2008 and another DAV VSO said it would be quicker if I went traditional, so he sent in a change. To date I have received nothing from my VARO except for a copy of my C-file which I requested. I called the 800 number and they confirmed it was on track for a traditional appeal but still at the VARO awaiting the SOC.

I am just not sure if I should, or can revert it back to the DRO process.

Thanks,

Ric

[Berta]

When your award hit 80% what rationale did the VA state in that decision to deny you TDIU consideration and award?

Unless you are employed at over the poverty level- I assume that maybe the VA held your degree in law against you???

Are you able to obtain a private medical opinion that emphatically states your SC disabilities have rendered you unable to work?

Being familiar with the law yourself you know that the wording of their denial is exactly what your medical evidence of TDIU has to overcome.

I also wonder if the degree was through the Voc Rehab program- a 2 edged sword.

VA tried to lower my husband's comp after he attended one semester of college under Voc Rehab.

He also had gotten at the same time -part time employment at VA in a job he was not well qualified for only as a temp position because they had denied him interview for another position he was well qualified for per OPM and VA hired a relative instead.We made a stink and to avoid a EEOC complaint they gave him this job until something else opened up in engineering.and they canned the personnel director.

After about 2 weeks on the VA crap job (he was former Nuke) and one semester in college VA tried to suggest he had turned into a rocket scientist and had pobtained substantial employment.They proposed to lower his comp.

From 30 at that time to 10 %.

I wrote his NOD, he signed it and they dropped that idea pretty fast.

VA gave you a reason for no TDIU and this is the reason you need to combat with evidence.

[Shark]

When your award hit 80% what rationale did the VA state in that decision to deny you TDIU consideration and award?

Unless you are employed at over the poverty level- I assume that maybe the VA held your degree in law against you???

Are you able to obtain a private medical opinion that emphatically states your SC disabilities have rendered you unable to work?

Being familiar with the law yourself you know that the wording of their denial is exactly what your medical evidence of TDIU has to overcome.

I also wonder if the degree was through the Voc Rehab program- a 2 edged sword.

VA tried to lower my husband's comp after he attended one semester of college under Voc Rehab.

He also had gotten at the same time -part time employment at VA in a job he was not well qualified for only as a temp position because they had denied him interview for another position he was well qualified for per OPM and VA hired a relative instead.We made a stink and to avoid a EEOC complaint they gave him this job until something else opened up in engineering.and they canned the personnel director.

After about 2 weeks on the VA crap job (he was former Nuke) and one semester in college VA tried to suggest he had turned into a rocket scientist and had pobtained substantial employment.They proposed to lower his comp.

From 30 at that time to 10 %.

I wrote his NOD, he signed it and they dropped that idea pretty fast.

VA gave you a reason for no TDIU and this is the reason you need to combat with evidence.

Their denial was very vague:

"Along with the type and extent of your disabilities, we consider your employment history and work/educational experience when considering possible entitlement to the individual unemployability benefit. The law, 38 CFR 4.19 states that "age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating".

The record shows you are 61 years old. You have reported education level of four years of college with a Masters Degree in Business Administration and last worked full time in June 2006.

There is no indication that you would be precluded from all types of employment due to your service connected disabilities.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to grant entitlement to individual unemployability. The question is whether the veteran is "capable" of performing the physical and mental acts required by employment, not whether the veteran can find employment.

You have not been found unable to secure or follow a substantially gainful occupation as a result of your service connected disabilities.

Based on the objective evidence above you are not shown to be unable to secure or follow a substantially gainful occupation as a result of service connected disabilities and are considered capable of gainful employment. Therefore, entitlement to individual unemployability is denied.

The rule regarding benefit of reasonable doubt does not apply because the preponderance of evidence is unfavorable."

I think that education is part of the problem as I am currently in a Ph.D. program that I asked Vocrehab to pay for and they declined saying that I was employable with an MBA. My VA psychologist stated in my rebuttal evidence that he suggested that I go back to school to keep my mind busy and thus avoid deep depressions. He also stated, along with my VA Psychiatrist that I am currently unemployable. My attorney feels that I have a good case.

But, I am still in a quandry as to whether I should revert back to the DRO process or keep on the traditional path.

Thanks again!

Ric

[Berta]

The only thing I can think of that would help you is if you can get an opinion from an independent medical doctor who can state with full medical rationale that in spite of your education and the other stuff that VA said, your SC disabilities nevertheless render you unemployable.

And they have to give full medical rational.

Does your past work history show any thing that would reflect that PTSD made it difficult for you to work?

Was it difficult for you to attain a degree due to SC?

Do you have anything such as personnel performance records that show your SCs caused you on the job problems or any documented need for accomodations- in school or on the job?

Does your PTSD make it difficult for you to deal with the public or cause any secondary problems such as agoraphobia or social anxiety?

These are the types of things that determine a medical rationale as to employability.

PS almost forgot- do the meds you take for SC have side affects that would hinder employability such as do not take and drive, or causes confusion, drowsiness, etc.Did those side affects impact on your Voc Rehab grades?

Only a IMO doc -maybe one who is also a vocational expert-would be willing to properly assess your employability potential better than VA will take the time to do.