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.
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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
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