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]

I agree with John- normal VA SOP on this-

you have 60 days to respond to the denial of the CUE.and you can appeal it- just like any other claim.

I felt your CUE was excellent- I would fight them on it-but the C & P refusal-they will probably hold against you-

I would send them a formal filled out TDIU form-if I were you- (attached)

add a copy of any SSA wage statements you have, and tell them of any evidence ,from any doctor, or if VocRehab turned you down-that states that you are unemployable-due to your service conncted disabilties- if you have that evidence to copy and send at this time.

Tell them (Under Remarks you can refer to additional attched statements) the side affects of any SC meds you take that hinder your ability to work.

There are numerous suggests at hadit as to TDIU claims.

If a veteran's service connected disability prevents them from being substantially employed ,by medical evidence, they can succeed on a TDIU claim.

I dont trust them to open this claim for you- the way they stated it there-

the EED of a TDIU claim is usually the date of the formal 21-8940 (attached)

if they did not send you the actual form with this letter-they are hoping you dont find out that the formal form must be filed before they can award.They could then possibly save money on your EED.

They sent me a letter a few weeks ago suggesting they want to re-open an old CUE claim I had regarding my husband's heart disease-and my direct SC death claim-

it was a very interesting ploy!

My local vet rep actually got it too-they are slick-and have assessed the monetary value of my claims.

If they re-open and award that CUE , they would not owe me the 11 years plus DIC retro on the AO claim.

1151 DIC is NOT the same benefit as AO DIC-not a duplication-

They would owe me some money on this CUE (which is supported by medical evidence today as it was when I first filed it)-but not at all close what I intend to get under direct AO death.

So- I suggest that although it appears they are appraoching you with a TDIU'deal' that may or may not be granted-cover all bases now and file the formal TDIU claim if they 'forgot' somehow to send it to you.

TDIU_form.pdf

[Angela]

Thanks all!

I would never have thought of including the fact that I was turned down for VocRehab or a statement of side effects!

So let me make sure I'm understanding you correctly. I should ask them to schedule the C&P (in connection w/TDIU) when I send back the form, and include Social Security Statement, Medical Records, notice that I've been turned down for VocRehab, and my statement about effects of disability (and medications) on ability to secure/keep employment.

They can't then go and use these med records in connection with my CUE or use them to change it to a reopen, right? That's what I want to avoid. If they reopen and award 100 %, I won't get the retro that I'd otherwise get with CUE.

[Angela]

Also,

In my NOD I don't have to list again all their errors in order to preserve my right to bring them up before the BVA do I?

[john999]

Angela

I would make an arguement for why I should get service-connection and site the evidence. I would also add a statement that I disagree with all aspects of decision and that I intend to appeal all aspects of the denial. I know their is a better way to phrase it but you want to cover all the bases. Most generic appeals have some good language to tack on at the end of you personalized NOD. You don't want to make it easy for the them to just rubber stamp a denial of your appeal based on the original denial.

[Berta]

John is right- the NOD is the first avenue of attack-

It should not be long- they wont read it all-

get right to the point -

I disagree with your (date) decision because-

and state what evidence they failed to address etc-

use the Denial letter as a reference -because

they narrowed the denial down to specific Reasons and Bases-

I had one sole reason that VA stated as a reason for a denial in 2005 decision.They cant change that statement.

I had already combatted the statement a year prior with medical evidence,(which my vet reo said they have in the c file) which they refused to acknowledge in the denial.I brought this up and I again attached the specific evidence they wanted- which completely supported the claim and satisfied what they wanted in the first place.

My point is they will deny based on lack of what they need to award.Also they will deny if they are not addressing your most pertinent evidence.

Focus solely on those statements in the denial letter and tell them what evidence they have to give you the proper award.Evidence can be attached to an NOD.

End the NOD by stating that "I fully intend to continue my appeal until the benefits I seek have been granted."

In the first page of the I-9 (BVA) if your claim gets that far you will have opportunity to state all violations of 38 CFR they made. I posted here advise on an eye catching I-9 statement that all should use.

You can state in the NOD specific violations-I did that too-but keep it brief so they read it all.

A good NOD can sometimes turn a claim around and generate an award.

NODS being worked on in Buffalo VARO are all over a year old.

Edited April 10, 2006 by Berta