Dro Disqualification

[blue12]

Hello all. Need some advice here.

I filed a NOD on a decision that denied an earlier effective date.

The RO held a DRO De Novo hearing. At hearing, we found out that the hearing officer was the one that had made the denial. It did not hit home that he should not have been officiating the hearing.

A few weeks later, we received a denial by the DRO.

We immediately filed for an appeal with video hearing.

This past week, after a lot of research in preparation for our appeal, I stumbled across the requirements of M21-1MR, Part 1, Chapter 5, Section 13 ©, which stipulates that the DRO that made the decision of which was under review at said hearing could not officaite this hearing.

This was the proverbial last straw.

I wrote an application for a 1151 Claim, stating,

1. Failure of the VA to diagnose symptoms of ******* from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants.

2. Failure of duty to assist the veteran in developing a claim for ******** from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist.

3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C.

4. Failure of VSCM, ********** *******, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of ***** *******, in violation of stated federal regulation.

5. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © Mr. *******, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation.

6. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(:P; Mr. *******, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.

7. Additionally, Mr. ******, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. Mr. ****** denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ***** ******, and the fact that ******* was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994.

8. Further, Mr. ****** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with **** ****** by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C.

9. Failure of Veterans Service Representative **** ***** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO.

10. Failure of Veterans Service Representative **** ***** to maintain and preserve the best interests of the claimant in stated DRO hearing.

11. Claimant would like the record to reflect that Mr. ***** was placed on this case the morning of May 5, 2009 DRO hearing by the VARO. Mr.***** knew nothing about my case whatsoever. (We also used to work together in the late 80's...I knew this guy....now works for the RO)

12. I was awarded a service connection for the misdiadignoses disease in 1994.

13. Award of service connection in December, 2008, based on an erroneous medical opinion.

14. Correction of previous award entered by VARO on March 2, 2008, corrected to 100% service connection for ***** , of which ***** was claimed in 1994.

15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors.

This was filed with the RO this past week.

My problem is that I don't know what to expect now.

What should our next step be?

What happens to the DRO?

The RO administrator stated that they are doing a review of the case now and are going to have a different DRO review it.

I want to make sure that I am doing everything correctly and would appreciate any feedback. It would be most appreciated.

[Ricky]

6. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(; Mr. *******, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.

This caught my eye - if you received a denial from a DRO and asked for a reconsideration in which they gave you a hearing - they really did not do anything wrong as it is normal procedure when a vet asks for a reconsideration it will go back to the person that made the original decision. Now if it was an initial denial and you asked for a DRO review with a hearing and the original rater acted as the DRO at the hearing then they have violated the rules and regulations.

So please clarify for my ole mind was this a request for a reconsideration of a dro denial?

[carlie]

I wrote an application for a 1151 Claim, stating,

1. Failure of the VA to diagnose symptoms of ******* from date of retirement from active duty military, effective August 1, 1994 to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants.

2. Failure of duty to assist the veteran in developing a claim for ******** from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist.

3. Failure of duty to assist the veteran in receiving maximum benefits, from date of retirement from active duty military, effective August 1, 1994, to January 22, 2008, per requirements set forth in 38 USC 5103 - Sec. 5103A. Duty to assist claimants; M21-1MB, Chapter 5, Section C, 11©; and M21-1MR, Part 1, Chapter 5, Section C.

4. Failure of VSCM, ********** *******, to perform per the requirements of M21-1MB, Chapter 5, Section C, 11©; failure to appoint an acting DRO during the disqualification of ***** *******, in violation of stated federal regulation.

5. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section 13 © Mr. *******, the DRO at de novo hearing on May 5, 2009, was the same DRO that made the decision of which was under review at said hearing, and in violation of stated federal regulation.

6. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11( B) ; Mr. *******, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.

7. Additionally, Mr. ******, per federal regulations of M21-1MR, Part 1, Chapter 5, Section C, requires a full consideration of all evidence of record. Mr. ****** denied an earlier effective date based on an erroneous medical opinion and not the corrected medical opinion of Dr. ***** ******, and the fact that ******* was not claimed upon initial application for benefits with the VA upon retirement from active duty military in 1994.

8. Further, Mr. ****** stated that I did not claim dizziness as a symptom in 1994. I did. Please refer to Ratings Decision dated 2/1/495, page 4. It was combined with **** ****** by the VARO, which constitutes a further violation of federal regulation M21-1MR, Part 1, Chapter 5, Section C.

9. Failure of Veterans Service Representative **** ***** to object to the DRO De Novo Hearing of May 5, 2009, on grounds of disqualification of presiding DRO.

10. Failure of Veterans Service Representative **** ***** to maintain and preserve the best interests of the claimant in stated DRO hearing.

11. Claimant would like the record to reflect that Mr. ***** was placed on this case the morning of May 5, 2009 DRO hearing by the VARO. Mr.***** knew nothing about my case whatsoever. (We also used to work together in the late 80's...I knew this guy....now works for the RO)

12. I was awarded a service connection for the misdiadignoses disease in 1994.

13. Award of service connection in December, 2008, based on an erroneous medical opinion.

14. Correction of previous award entered by VARO on March 2, 2008, corrected to 100% service connection for ***** , of which ***** was claimed in 1994.

15. Subsequent denial of earlier effective date based on numerous erroneous facts and errors.

This was filed with the RO this past week.

My problem is that I don't know what to expect now.

What should our next step be?

What happens to the DRO?

The RO administrator stated that they are doing a review of the case now and are going to have a different DRO review it.

I want to make sure that I am doing everything correctly and would appreciate any feedback. It would be most appreciated.

blue 12,

May I ask what does any of this at all have to do with an 1151 claim ?

This - to me does not even begin to resemble an approach to an 1151.

carlie

[carlie]

Hello all. Need some advice here.

I filed a NOD on a decision that denied an earlier effective date.

The RO held a DRO De Novo hearing. At hearing, we found out that the hearing officer was the one that had made the denial. It did not hit home that he should not have been officiating the hearing.

A few weeks later, we received a denial by the DRO.

blue12,

There is nothing I know of called a DRO De Novo hearing.

There is a DRO De Novo Review in which a DRO goes over the claim again

and makes a decision.

There is a Hearing that can be held with a DRO.

Talking about a request for reconsideration and a NOD is

like comparing apples and oranges.

To answer your question in regards to a DRO Hearing that was the result of filing a NOD,

this is the best I can do.

carlie

http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch04.doc

1. General Information on Hearings, Continued

e. Who Conducts Post-Decisional Hearings

The DRO is empowered to hold post-decisional hearings on VBA benefit issues.

The duties and authorities of the DRO may also be exercised by the VSCM.

The DRO serves as an integral member of the Appeals Team, reporting to its Coach.

Note: If the DRO participated in the original decision, another DRO or acting DRO must hold the hearing.

Edited September 14, 2009 by carlie

[jbasser]

When you complete a NOD, It is imparative that you put on the top of the page that this is a NOD and not a request for reconsideration.

The RO can reconsider a claim and cause mass confusion even on a NOD.

The Claimant must clarify the NOD.

J

[Ricky]

Note: If the DRO participated in the original decision, another DRO or acting DRO must hold the hearing.

This applies if you are still appealing a DRO denial and some how luck up and keep the claim at the RO and have a hearing. Then they must assign a new DRO. But if you asked for a reconsideration of a DRO denial because you have evidence that was not considered then it will go back to the original DRO.