Request Dro Or Not Request Dro?

[Angela]

Hello everyone,

I'm asking for your help in deciding if I should request a DRO review or the traditional appeal route for my claim of Clear and Unmistakable Error. The original RO failed to consider evidence and failed to consider the rating criteria in the light most favorable to the veteran (which they're required to do when the DC is ambiguous).

Original Decision copied directly from general practitioner's MEB that closed out Dec 01...

1) "It was determined that everything surgically possible had been done to correct your condition"and

2) "biofeedback appears to have helped decrease the frequency"

but did not note ANY results from most current exam (Jan 02) by a specialist, that stated...

1) "biofeedback without relief" and

2) "discussed potential ostomy"

3) and more very pertinent results not listed anywhere else in records...

I believe that since statements 1 & 2 from original decision were directly contradicted by the statements from the more recent specialist's exam, the RO's failure to mention that exam(s) results at all should "Clearly & Undebateably" show that they weren't considered. Am I wrong here?

Anyway, I requested review due to CUE (Dec 05) and today I received the denial that only stated..."Although not cited directly, this record was considered." in reply to my contention that record wasn't considered, and "it does not clearly show .... to warrant 100 percent evaluation". Their CUE decision made it sound like the only evidence on the later exam was the two items I used to show (undebateably) that they hadn't considered it. Didn't mention any of the other evidence that was only included in the later exam.

Sorry I'm so long winded here but wanted to put the facts out there before I ask my questions in case they'd made a difference in the answers.

Q1 - Is DRO the way to go now or should I just go through the normal appeal process? Why?

Q2 - Which process is faster? my RO is in Houston, TX

Q3 - Any other questions you care to answer ... :)

Thanks for your help everyone. Don't know what I'd do without HADIT.

Angela

[Guest allanopie]

Hello Angela,

I was denied at the RO si my claim went to the DRO. He rubber stamped the RO's denial, almost word for word in the SOC. I appealed. The claim went right back to the same DRO, which issued a SSOC, rubber stamping his first SOC & the RO.

The good news is, it was only delayed 4 yrs. It could have been much worse if I had something more serious wrong with me, that prevented me from picking up on the games they play.

If your claim is before the VARO, DRO or Appeals center, expect it to collect dust for years, have favorable evidence completely ignored and denied with any BS they want to make up.

I can only speak from my experience. It's possible, but highly unlikely you will see justice untill you get to the BVA or COVA level.

allan

[Berta]

Angela- these days both the DRO process and the BVA process are often lengthy-

I have been in actual DRO review process for almost a year but getting close to the 930 (End Product)

I would sure NOD this decision and ask for DRO review but that is me -others will say BVA.

Did you get a VCAA letter on the CUE? I never did get one.

Did they send you anything at all asking for more info?

They sent me a letter a month ago making 6 legal statements on CUES

and referred to mine- but they didnt say which one-I think it is the SMC accrued CUE.

I responded to each statement as it applied specfically to my CUE-legally with documented evidence- and then I enclosed to them- more evidence that I had recently found.

It went into the rating board last week.

I certainly would do all I could-if I were you- to rebutt the denial.

[Angela]

Berta,

The package had a cover letter stating the decision & what to do if I disagree, the Decision, VA Form 4107 (Your rights to appeal), and a page and a half titled "Additional Information About Disability Ratings and Effective Dates that just tells how they determine the rating & effective dates, that I have a year to send additional evidence, & that sending additional evidence is not the same as an appeal. I'm not sure if any of these is the VCAA letter since that term doesn't show up on anything in my package.

You said ... .

I certainly would do all I could-if I were you- to rebutt the denial.

Does that mean you would request DRO review? Wouldn't I have a better chance to dispute their contentions if I had a statement of case before I laid all my cards on the table? I'm wondering if they won't use the info I send them now to write the statement of case specifically to refute and or otherwise confuse the issues?

I'm not very good at explaining myself, sorry about that, hope you get the gist of my concerns anyway.

Question - The VA form 4107 says that once the VA receives my NOD they will either grant the claim of send a statement of case. Do you know if they ever actually grant the claim following the NOD?

The reason I ask is that I've found a more clean cut way to state my case and a legal rule that applies that I didn't specify in the original CUE request. You see, I stated that it should have been done but didn't have the legal reference to back it up at that time. Of course the RO completely ignored it, just like the ignored most of what I sent

[Berta]

"Question - The VA form 4107 says that once the VA receives my NOD they will either grant the claim of send a statement of case. Do you know if they ever actually grant the claim following the NOD"

Yes- I personally have won claims with the NOD and also many vets I know have done so to-

The NOD is your first line of attack.

I NEVER suggest getting some SO or vet rep to send them a generic NOD in your behalf.Never ever.

The NOD should specifically disagree with the decision and every point in it- and also can refer to attached evidence. It should rebutt each error in fact, law, or rating etc.

Also the NOD should end with:

"I fully intend to continue to appeal this decision until the benefits I seek are granted."

Pick the decision apart in the NOD-if the claim is not granted and the NOD generates an SOC-more than likely they will make errors in the SOC too- more ammo to rebutt with.

[john999]

I think I would ask for a DRO Hearing with your NOD. You may get a decision earlier than if you go right to the BVA which is usually at least 2 years and maybe a remand. There is no one answer as some have had good experience with the BVA and others with the DRO. I won at the DRO three times so I vote DRO. If you lose at the DRO you can always go to the BVA later. I have had good DRO decisions and I have had rubber stamps of VARO decisions.

[Angela]

Should I have my DAV rep send a cover letter when I ask for DRO review? If I don't, will they just send it to him themselves - delaying resolution. Maybe I should write what I want him to include and ask him to sign it?

John,

You said

I have had good DRO decisions and I have had rubber stamps of VARO decisions.

Can you think of anything you did differently when you had the good DRO decisions?

Also, should I ask for a copy of my claims file before sending in my request for DRO review or will it take too long to get it? What do you think? From the wording used in the denial I think the C&P examiner didn't have my file and/or also didn't consider the evidence that the RO didn't consider.