Interesting Dro Hearing Today

[Quint7]

I had a DRO in Buffalo today to appeal for an EED for my knee. I filed upon the end of my enlistment in July 1994 and never heard back from VA. I collected GI Bill and bought houses with my VA certificate. In 2006 I filed for my knee and was told I was 0% since 1994 due to being a no show for a C&P. The letter telling me to go was supposedly "undeliverable". I ended up with 20% from 2006.

So today I meet with the rep from NY Vets Affairs and the DRO. They had discussed my case before and I spent an hour explaining it to my rep. I had mentioned a CUE in my leters to VA. The DRO is a lawyer and a disabled Vietnam vet. He was 180 degrees opposite from the one I had before for my back and knee. Friendly, honest, seemed like a good guy.

We were discussing my case and he said that I most likely didn't meet CUE and if I had VA treatment for the knee post service I would have a solid claim. I told him about the undeliverable letter and that I had other mail delivered then that was in evidence. He said that was good but not open and shut. I also said that the rater in 1994 used my no show as the reason for 0% even though my records indicated treatment up to a month before my enlistment ended. I thought my military records were enough to rate something above 0% no matter what. He said that they might, especially if part of my claim was for "pain".

He said "pain" ALWAYS rates a minimum of 10%, even without an exam. For the knee, pain even supersedes range of motion so that even if you have 100% range of motion, if you have pain during that range of motion it is supposed to be an automatic 10% as pain is always rateable above 0%. I was amazed. He said that didn't promise me the EED at 10% or higher, but that is the way he has always applied the regs.

Then I mentioned never receiving a letter letting me know I had been given 0% in 1994. He looked quickly in my folder and said it wasn't right there where it should be, which would mean the claim was never final and would allow him to rate it as though it was just opened which would be very beneficial to me. He said that he would go page by page to see if it was mixed in somewhere else, but if not then it changed the whole ball game.

I also mentioned that the free copy of my C-file was incomplete and said that the envelope that was in front of him showing the "undeliverable" letter was not copied. He got very upset and said that he would order them to make a complete new copy of the whole c-file for free. My rep asked him to delay that until he made his decision so that it wouldn't delay that and the DRO agreed that it was a wise thing to do and made sure that my rep had me sign a form stating that I would wait til after the decision to get that additional copy. I also signed a form rescinding my mention of a CUE as he said that would eliminate a lot of time and BS just to have it denied.

So overall I think it went 70% towards I win, 30% towards I will lose out on a technicality. My rep thinks more like 90/10%. The DRO was obviously being straight with us and while I won't say he was pro-vet, he belived the spirit of the VA regs are to do everything that the VA can to help the vet get any and all comp. due. I told him that even if I end up with nothing changed that just having a meeting like that was worth the appeal and he said that he appreciated that.

[carlie]

Quint,

It sounds like this DRO is one of the few exceptions.

I hope this goes well for you.

carlie

[mags1023]

Thanks for sharing! The DRO experience is something a lot of us will eventually go through and it helps to hear what you went through. I hope his decision is the best for you!

[Quint7]

Thanks everyone! I didn't get any emails saying there were replies to this thread or I would've been on earlier.

Like I said, the DRO seemed very fair and honest. What that means as far as my claim, I don't know. Like I said before he is a lawyer and disabled vet so I agree that he will be thorough and his findings will be legal.

My biggest reason for the post was his statement about "pain". It is ALWAYS a compensatory claim that is NEVER to be rated at 0% according to the DRO. That blew my mind. I can't imagine the 1000's of vets who have received 0% because they regs were applied to ROM only and "pain" was listed but not rated. My rep said that is the logic behind giving $ for "painful scarring". He said that if you have a scar from service and it itches, that is pain and therefore makes it a "painful scar" as you wouldn't need to itch if the scar wasn't there.

Very interesting point of view.

[deltaj]

I had a DRO in Buffalo today to appeal for an EED for my knee. I filed upon the end of my enlistment in July 1994 and never heard back from VA. I collected GI Bill and bought houses with my VA certificate. In 2006 I filed for my knee and was told I was 0% since 1994 due to being a no show for a C&P. The letter telling me to go was supposedly "undeliverable". I ended up with 20% from 2006.

So today I meet with the rep from NY Vets Affairs and the DRO. They had discussed my case before and I spent an hour explaining it to my rep. I had mentioned a CUE in my leters to VA. The DRO is a lawyer and a disabled Vietnam vet. He was 180 degrees opposite from the one I had before for my back and knee. Friendly, honest, seemed like a good guy.

We were discussing my case and he said that I most likely didn't meet CUE and if I had VA treatment for the knee post service I would have a solid claim. I told him about the undeliverable letter and that I had other mail delivered then that was in evidence. He said that was good but not open and shut. I also said that the rater in 1994 used my no show as the reason for 0% even though my records indicated treatment up to a month before my enlistment ended. I thought my military records were enough to rate something above 0% no matter what. He said that they might, especially if part of my claim was for "pain".

He said "pain" ALWAYS rates a minimum of 10%, even without an exam. For the knee, pain even supersedes range of motion so that even if you have 100% range of motion, if you have pain during that range of motion it is supposed to be an automatic 10% as pain is always rateable above 0%. I was amazed. He said that didn't promise me the EED at 10% or higher, but that is the way he has always applied the regs.

Then I mentioned never receiving a letter letting me know I had been given 0% in 1994. He looked quickly in my folder and said it wasn't right there where it should be, which would mean the claim was never final and would allow him to rate it as though it was just opened which would be very beneficial to me. He said that he would go page by page to see if it was mixed in somewhere else, but if not then it changed the whole ball game.

I also mentioned that the free copy of my C-file was incomplete and said that the envelope that was in front of him showing the "undeliverable" letter was not copied. He got very upset and said that he would order them to make a complete new copy of the whole c-file for free. My rep asked him to delay that until he made his decision so that it wouldn't delay that and the DRO agreed that it was a wise thing to do and made sure that my rep had me sign a form stating that I would wait til after the decision to get that additional copy. I also signed a form rescinding my mention of a CUE as he said that would eliminate a lot of time and BS just to have it denied.

So overall I think it went 70% towards I win, 30% towards I will lose out on a technicality. My rep thinks more like 90/10%. The DRO was obviously being straight with us and while I won't say he was pro-vet, he belived the spirit of the VA regs are to do everything that the VA can to help the vet get any and all comp. due. I told him that even if I end up with nothing changed that just having a meeting like that was worth the appeal and he said that he appreciated that.

What I find most interesting is that this V.A. rep stated that the absence of the notification letter meant the claim was not final. This is strange considering that V.A. has been using the Presumption of Regularity to state that it must be presumed that a veteran was notified of a decision. Anyone know if there has been any recent court decisions overturning the presumption of regularity when there is no notification letter in a veteran's file?

[Quint7]

What I find most interesting is that this V.A. rep stated that the absence of the notification letter meant the claim was not final. This is strange considering that V.A. has been using the Presumption of Regularity to state that it must be presumed that a veteran was notified of a decision. Anyone know if there has been any recent court decisions overturning the presumption of regularity when there is no notification letter in a veteran's file?

We actually discussed that in depth (like I said this DRO was very open and receptive to questions). My file appears to not have a letter anywhere. The DRO said that they may have just never sent one and filed me claim as closed due to abandonement. He said that a letter stating the decision must be in the file or it is considered to be an open claim (VAs fault of course) no matter how long its been.

[carlie]

Sec. 3.158 Abandoned claims.

http://edocket.access.gpo.gov/cfr_2009/julqtr/38cfr3.158.htm

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.158 Abandoned claims.

(a) General. Except as provided in Sec. 3.652 of this part, where

evidence requested in connection with an original claim, a claim for

increase or to reopen or for the purpose of determining continued

entitlement is not furnished within 1 year after the date of request,

the claim will be considered abandoned. After the expiration of 1 year,

further action will not be taken unless a new claim is received. Should

the right to benefits be finally established, pension, compensation,

dependency and indemnity compensation, or monetary allowance under the

provisions of 38 U.S.C. chapter 18 based on such evidence shall commence

not earlier than the date of filing the new claim.

(Authority: 38 U.S.C. 501)

(b) Department of Veterans Affairs examinations. Where the veteran

fails without adequate reason to respond to an order to report for

Department of Veterans Affairs examination within 1 year from the date

of request and payments have been discontinued, the

[[Page 190]]

claim for such benefits will be considered abandoned.

© Disappearance. Where payments of pension, compensation,

dependency and indemnity compensation, or monetary allowance under the

provisions of 38 U.S.C. chapter 18 have not been made or have been

discontinued because a payee's present whereabouts is unknown, payments

will be resumed effective the day following the date of last payment if

entitlement is otherwise established, upon receipt of a valid current

address.

Cross References: Periodic certification of continued eligibility.

See Sec. 3.652. Failure to report for VA examination. See Sec. 3.655.

Disappearance of veteran. See Sec. 3.656.

[27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52

FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July

31, 2002]