Appeal Certification

[Lee_USAF]

Filed claim in March 2009 - Denied; Submitted NOD electing de Novo review and had my DAV Rep request conference with DRO. Never got the conference and the original denial was upheld. Claim was for amendment of original rating of Cardiac Arythmia (PVC) to Mytral Valve Prolapse and service connection for Stenosis of 3 coronary arteries of 50 - 60 percent.

Submitted VA FORM 9 and received letter "Substantiating" my appeal in November 2007. Hasn't moved since. Meanwhile, submitted additional medical evidence of Stent implants (2) in Aug 2007, and received Supplemental Statement of the Case (total of 1 form original AO and two from DRO.)

No one can/will tell me why my case is still in DRO. AMC doesn't even know me, thus my appeal has not been sent there nor has the Board of Veteran Appeals received anything on my "Substantiated Appeal."

Any ideas/suggestions?

[broncovet]

My experience has been that the appeal "path" goes something like this:

1. RO issues decision

2. Vet files NOD.

3. Ro asks Vet to elect DRO review, DRO hearing, or BVA appeal.

(A DRO hearing request slows the process down immensely as DRO hearing officers are backed up, and you have to wait still more time after the hearing for a decision)

4. If the Veteran is satisfied with the results of the DRO Review/hearing, the case does not proceed to the BVA. However, If the Vet is still dissatisfied with the DRO decision, then he files a form 9, the substantive appeal, to proceed to the BVA.

5. The RO then "certifies" the appeal and it moves to the BVA.

You indicated that your claim is still at the DRO. You should check your old paperwork to see if you, in fact, elected a DRO "hearing" or a DRO "review". Ask your VSO if he/she can document your request for a hearing. If you have documention to support that you elected a DRO hearing, but were denied a hearing, then it would appear you should consider hiring a lawyer represent you at the BVA.

If you can not document your request for a DRO hearing, then you need to rattle the cage to get your claim moving to the BVA. I recommend you "rattle the cage" in this order:

1. Call your VSO and ask him to request status.

2. Send an IRIS email, and request status.

3. Call the 800 number, and ask them to request status.

4. Send a "Statement in Support of Claim" stating that your claim has not moved from the DRO in 2 years, and indicate an intent to file a Writ of Mandamus.

5. If no action, file a writ of mandamus.

You may be another "shredding" victim, also. Often the VA shreds your evidence, then delays your claim because they say they have " no record" of it. If this is the case, File a Special Handling request before Nov. 14, 2009.

Edited August 5, 2009 by broncovet

[Berta]

Did they send you a VCAA letter with a highlighted section telling you exactly what evidence they need?

These SSOcs contain clues to what they still need from you as well.

Their Reasons and Bases of denial is what you need o focus on.

On the I-9 (I dont believe most reps file these out correctly)

state what evidence they ignored in the decision and why they are wrong.

BTW-did you send them the additional evidence you said you had on the SSOC response form?

[Pete53]

The VA is required to have a Hearing anytime in the process if a Veteran asks for it. The VA has to do it its is part of their regulations. I cannot understand how this DRO is denying you a right that you have as a Veteran.

I am not to good at posting the CFR but I have personally has a hearing after the BVA had my appeal for 2 years and was doing nothing. The results of this request were good as I was awarded 100%

Please do not let these dimwits get away with not seeing you and your evidence.

If it were me I would want the hearing to be on the record.

Good Luck

[Lee_USAF]

My experience has been that the appeal "path" goes something like this:

1. RO issues decision

2. Vet files NOD.

3. Ro asks Vet to elect DRO review, DRO hearing, or BVA appeal.

(A DRO hearing request slows the process down immensely as DRO hearing officers are backed up, and you have to wait still more time after the hearing for a decision)

4. If the Veteran is satisfied with the results of the DRO Review/hearing, the case does not proceed to the BVA. However, If the Vet is still dissatisfied with the DRO decision, then he files a form 9, the substantive appeal, to proceed to the BVA.

5. The RO then "certifies" the appeal and it moves to the BVA.

You indicated that your claim is still at the DRO. You should check your old paperwork to see if you, in fact, elected a DRO "hearing" or a DRO "review". Ask your VSO if he/she can document your request for a hearing. If you have documention to support that you elected a DRO hearing, but were denied a hearing, then it would appear you should consider hiring a lawyer represent you at the BVA.

If you can not document your request for a DRO hearing, then you need to rattle the cage to get your claim moving to the BVA. I recommend you "rattle the cage" in this order:

1. Call your VSO and ask him to request status.

2. Send an IRIS email, and request status.

3. Call the 800 number, and ask them to request status.

4. Send a "Statement in Support of Claim" stating that your claim has not moved from the DRO in 2 years, and indicate an intent to file a Writ of Mandamus.

5. If no action, file a writ of mandamus.

You may be another "shredding" victim, also. Often the VA shreds your evidence, then delays your claim because they say they have " no record" of it. If this is the case, File a Special Handling request before Nov. 14, 2009.

Broncovet - Many thanks for your comment. I did file a NOD electing DRO option and stated in my NOD quote: "I have additional medical evidence to submit." I also alleged CUE under Bell v Derwinski (VCA 1985) and inadequate exam by the VA Medical(?) examiner.

Finally in the oder you stated above, I did the following (kept a journal of all actions)

1. Call St Petersburg Regional office for status - Still in DRO

2. Called my VSO - waiting scheduling for travel board hearing. - She hung up on me(?)

3. Sent a total of 6 IRIS emails related to my appeal and for when I head a heart attack - 3 answered.

Will send a 21-4142 requesting status in Cert Mail - Return Receipt. Not sure what a Writ of Mandamus is but will talked to my attorney. Difficult to find one locally (Tallahassee) that are versed in VA Law.

MANY MANY Thanks everyone

[Berta]

"I have additional medical evidence to submit." I also alleged CUE under Bell v Derwinski (VCA 1985) and inadequate exam by the VA Medical(?) examiner."

Did you sumbit that evidence yet? Do you have proof of mailing and receipt by VA?

Bell V Derwinski- interesting-

I used Bell myself for my SMC CUE claim.

The CAVC stated in Bell that if the VA had "constructive,if not actual knowledge of" records within the VA's control-they should reasonably be expected to be part of the record.

Of course the records must be probative ones.

In Bowey V Brown, the vet had sent medical treatises which were not included in the record.

Bell did not apply.In other cases it does apply.

In my CUE I stated VA had in their constructive possession

documents from the Office of General COunsel that involved a FTCA award in 1997 and then a Section 1151 award in Jan 1998.

In 1997 I also had received an accrued award after the FTCA matter was settled.

In none of those decision was the veteran found to be eligible for SMC consideration.

100% P & T SC PTSD, 100% CVA under 1151, and 6 years of still unrated heart disease.

I CUED using Bell among many other legal citations from M21-1MR and even BVA decisions - as to their legal interpretations of Bell.

Oddly enough my award has rendered this claim as moot issue because the VA has to make a SMC determination -accrued on the new award.And add a rating for diabetes mellitus.

But it appears the VA is still working on this CUE although I have informed them that this claim-once they prepare a proper new award letter- is over.

I would like to follow it through myself-but it doesnt make sense to waste their time when my new award letter should have made a SMC determination -accrued under Nehmer-anyhow.

I called a CUE on the award letter I got in May,told them how legally inaccurate it is, and the claim is now with a supervisor.

The award did say I have awards of DIC under both Sec 1151 and direct SC.I only want the direct SC award.

[Berta]

I wasnt too clear- the VA OGC in Washington had in their constructive possession-the FTCA settlement and medical reports.

VA had in their possession prior to the Bell decision in 1992 (a factor in my using Bell)the same medical records from 1988 that proved negligence as well as SSA reports of total disability CVA and then upon SSA reconsideration for total PTSD- 2 completely separate SSA awards.

This VA DC evidence was not sent to VARO for the pending 1151 claim until the settlement was made.

Then in spite of the FTCA, VA denied my 1151 claim for the 3rd or 4th time-I was so pissed I called the VA attorney in DC who in turn called the VARO-and I got the 1151 award letter.

My rep questioned the lack of SMC but just shrugged his shoulders- he was a happy camper-they had just gotten my POA not long before this award came.

I was too dumb to even think of filing a NOD on this.And he never suggested that I do that.

Bell appears in many CUE claims at the BVA sight.

I might have used Bell incorrectly in my CUE claim but I threw it in anyhow.

The VA must rate all disabilities a veterans has and then they must consider SMC.I was told in award letter Rod was not eligible for SMC. That was a CUE.They never rated his fatal heart disease which they admitted had caused his death due to negligence.

The lack of that rating alone is also a CUE.

And now they have to rate his DMII too-the malpracticed cause of his CVA and heart disease.

You mentioned an inadequate C & P exam--how did that fall into a CUE?

Was the diagnostic code based on the exam wrong?