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

[Berta]

Angela-you have one year in which to file the NOD-one year after the decision-

I always save VA envelopes as well as decisions-

Their decision might have been made, and their letter dated -weeks before you get it-

I say -go by their date of the decision in the letter and use that as the year deadline to be safe on the time limit.

I usually file NODs within a week after getting lousy decisions-

The NOD can be enhanced by sending additional evidence at any time after sending it in-

It is the most important document a vet has to prepare after an initial decision as it preserves the earliest effective date of the initial claim it is filed on.

[Berta]

Bubba- although the DRO regs prohibit the Lets Make a Deal scenario-

I certainly anticipated this by sending in 3 claims that I would be willing to withdraw if the main claims do not succeed-the funny thing is they were weak claims in 2004 but I found evidence to support them all-

Regardless of what the regs say- you experienced what is often fact-

it allows some SOs sometimes to pretend they are really working in ones behalf- by negotiating etc-

I believe some SOs try to get less for a vet than possible to be 'liked' by the DRO.

You did exactly what I believe is very important for a veteran to do-

you had confidence in your claim and did NOT accept anything less than you wanted.

I am very proud of the way you handled this-

NO vet should ever accept less than what the evidence says they should get. Kudos!

[john999]

Berta

I got the same Let's Make a Deal thing when I had my DRO. It was OK because I got what I primarily wanted which was service connection for some DMII secondary conditions. The SO, and DRO pretended that they had to do things by the book but it was essentially a deal that if I dropped other things I would get the SC. The DRO lived up to his word so I walked away happy for the present. Now I am thinking about another claim related to the DMII and housebound SMC. I just remember what Alex said about taking the money and running if I got P&T which I got. Service-connection is the lever by which all VA mountains can be moved.

[Angela]

Berta,

Received another letter from VA. Apparently, since they denied my CUE they've decided that they'll open a claim for TDIU for me instead. Asked me for additional evidence etc. Funny thing though, on the first page they say they're waiting for my response & "When we receive your response, we can take further action on your claim." and on the next page they say I have "one year from the date of this letter to submit the information "If we don't hear from you, we may make a decision on your claim in as soon as 60 days." Do you see what I mean? First they said they "can't take action on the claim til I respond" then they said if I don't respond they might decide in 60 days. I'm not sure if they're stupid, or if I'm being set up here but I suspect a set up.

Also, I had refused their new C&P exam (in connection with my CUE) because I don't want to give them ANYTHING they don't already have until this is decided. I have lots more exam records but they basically just say what the old ones do. Can't trust the VA not to try to use them against me though. Anyway, this TDIU letter says they may ASSIST me by ordering a new exam in support of "my claim for TDIU".

What's your take on this?

Angela

[john999]

Angela

If the VA wants to award you TDIU I would cooperate. I don't think it is a trick.

[Angela]

What sort of "evidence" do they need for TDIU? Just more medical records? Social Security Statement showing I haven't worked in years, maybe? What else is there?