Actions During Appeal

[Ricky]

I have submitted and the RO has received (Feb 06) my VA Form 9 for my appeal. The first denial resulted in a SOC that did not address any of the evidence or provide any clues as to why the claim was denied. My DRO review which took only 3 months was a carbon copy of the first denial.

My question is would it hurt to send in a statement/letter to the RO while the appeal is just sitting there gathering dust explaining my dismay at the treatment the RO provided to the claim ie.... no reasons or basis, no disucssion of why my evidence was not used/accepted, the lack of a full DRO review and the denial of my 10 requests to have a meeting with the DRO.

Or should I just let it be and let it go on through the BVA process?

Thanks Ricky

[Guest rickb54]

Ricky,

Most often the denial on a De Novo review will be the same as the original denial, all that means is that they are affirming the first denial. Three months for an answer on de novo is good, I have seen de novo's take more than a year. The time it takes to get an answer on a de novo only alludes to the the VA work load noting more. You can write any letters you want to write, they will read them and file them. You have no legal rights to speak to anyone concerning a De Novo review. The De Novo review is only designed to get a second look at the claim to see if the out come can be changed. If the results of the De Novo is not to your satification then the next step is a formal appeal. In the formal appeal you can claim that they did not do a "full" de novo review, but it will accomplish nothing. ( My question is what do you think a full de novo review is?)

My opinion, review your claim, provide the information the va said you need to get what your looking for and submit the formal appeal va form 9. Or reopen the claim after you have the documents to suport the claim.

Best of luck

[Vike17]

Ricky,

If the VA did not list the evidence you submitted on their original rating decision or their Statement of the Case (SOC), then that means it's probably not in your C-file and they never received it, or it was over looked. If this is the case, then you should write a letter to the Appeals team, attaching the evidence again. Ask them to evaluate the evidence and issue a grant in benefits sought or a Supplemental Statement of the Case (SSOC). Same thing with your requested hearing with the DRO. If you requested a hearing with the DRO, and they didn't comply, then before the VA can send your c-file to the BVA they MUST hold the hearing and issue a grant is benefits sought or issue a SSOC. If this doesn't happen, more than likely the BVA will remand your case back to your RO. Keep in mind that you only have 60 days from the date of the SOC, or the remander of the one year of the original notification of adverse action (original rating decision), whichever is later, to submit a response, additional evidence, or VA Form 9 to perfect your appeal. Since you have already sent in VA Form 9, your best bet would be to request the VA to 1) hold your hearing 2) evalutae the evidence not listed on their rating decision and SOC, 3) and request them to issue a grant in the benefits sought or issue a SSOC!

If you did request a hearing with the DRO, you do have a legal right to be heard!

If at all possible, you don't want to re-open your claim at a later date because you'll loosed your original effective date. Sometimes a veteran is unable to obtain the "New" evidence within the presribed time period, but when possible one should try to do so. It could mean the difference of receiving a small amount of retro, or a very LARGE sum.

I hope this helps!

Vike 17

[Berta]

Ricky -have you received a formal VCAA Notification letter telling you exactly what you need to give to the VA to succeed?

"My question is would it hurt to send in a statement/letter to the RO while the appeal is just sitting there gathering dust explaining my dismay at the treatment the RO provided to the claim ie.... no reasons or basis, no disucssion of why my evidence was not used/accepted, the lack of a full DRO review and the denial of my 10 requests to have a meeting with the DRO"

I recently out myself in the same situation- although my vet rep met with the VSM and DRO in Sept and got an assurance that my 2,000 buck IMO would be considered, they sent the claim off to the BVA and it has never been read.The DRO did not list it as evidence or consider it because she told my vet rep she could not understand it.

I asked a high school student to read it carefully-he understood it.

Since I sent them at least 8 copies of it-(I have been through this RO tactic tactic before in my past claims)

I sent it again- but to their VARO director with a letter suggesting that ,unlike the DRO, I expected her to be able to read it.

This is a growing RO SCAM. I am very willing- since I went thru this before -only to succeed at the RO after years of having my evidence ignored-to take every step I can to get them to read my evidence.

Past steps I took -some were bizarre-

at some point they spent so much time dealing with my complaint letters that they did read my evidence and I succeeded.

I also suggest that you write to Chairman Craig

Chairman Larry Craig

U.S. Senate Committee on Veterans Affairs

412 Russell Ave

Senate Office Building

Washington, D. C. 20510

and tell him exactly -with a copy to your VARO director- just how this practice is adding to the backlog.

Also make the point that this practice has denied you your basic rights as a claimant as found within 38 USC, 38 CFR, and within M21-1.

Chairman Craig is on the backlog committee.

I sent Chairman Craig a copy of my VARO complaint and also I specifically stated how they violated my rights. I didnt call it a scam-to him- ( which I feel it is )-

I called it a growing practice, proven by BVA Remands published on the net, for ROs to fail to send proper VCAA notices before the claim is denied-to fail to consider the veteran's probative medical evidence,and then

to send it off to the BVA and take a 930 end product code on their weekly worksheets to give the appearance that they have actually worked on the claim.

This "trickle down affect" adds to the BVA backlog and must be impacting by now on the court (CAVC)

I also sent him quotes from the IG report that I posted at hadit the other day- as to the fact that only 39 % nationwide of RO claims employees-to include DROs- by their own admission-to the IG- are actually able to properly work claims.

Since I already got people in the 61 percentile in that IG report who can't do their job, I asked for VA employees in the 39 percentile at my VARO who are capable of proper claims work.

[Ricky]

Thanks for all of the replies. To answer some of the questions posed back to me:

I fully understand what a De Novo Review is. All I want is one to be conducted. The Nuerologist reports, hospital reports, MRI's and VA CP exam reports that support my claim were submitted with the original claim, they were discussed in my NOD and attached with it and they were re-discussed in my VA 9 and reattached to the VA 9.

The VCAA received provided some guidance prior to submitting the NOD but only on one item. That was new and material evidence. That I thought was easy. The issue was whether new and material evidence had been submitted to reopen my claim for Fibro. The original denial stated your claim was denied because "you failed to attend a scheduled C&P exam in Dec 2002". "Therefore, any evidence submitted to reopen this claim must be new and material to the fact that you failed to attend a scheduled examination." Well I thought it would cut and dry, I simply attached a copy of the Dec 2002 C&P exam conducted in Birmingham which was for joint pain of Fibro origination. Fixed huh? Nope DRO said evidence existed in file so therefore, evidence I submitted was not new and material!!!!!!!!!!!What the hell? They denied because they said that I failed to attend C&P, said I must submitt evidence which provided proof of my attendance,I provided a copy of C&P, then they said nope we have that so it is not new and material!!!!!!! Before anyone asks - there were no other C&P exams scheduled. As I stated above the Dec 2002 exam was scheduled especially for my claim of Fibro. Maybe I am just such a dumb a$$ that I can not understand and this face to face will clarify it for me.

There is NO negative evidence against my other claims nor was any negative evidence used/discussed to deny the claims. All evidence provides that I suffered a stroke in Jan 05 resulting from and secondary to my service connected DMII and hypertension with residuals of complete loss of function of left leg/foot, left arm/hand and severe impairment of left face. They provided a residual rating under 8009 of 10 percent however, they should have rated it under 8008 at 100 percent for six months (claim was submitted in Feb 05) along with sepratings ratings for the face, leg/foot and arm/hand.

Since none and I mean NONE of the evidence was discussed in the denial nor the SOC I requested the post-decision meeting with the RO DRO simply so I could provide argument against such actions and to insure that an official record of my evidence (the meeting) exists prior to the claim being sent to the BVA. As I understand the regulations and the law such a request is one of the due process rights afforded to all veterans. M21 even discusses a post-decisional DRO meeting if I recall correctly.

So bottom line is that this meeting will force the RO to reconize my evidence, make it a matter of record and could force the RO to reconsider their decision prior to sending the claim off to the BVA. Maybe it is a waste of my time maybe not.

So this is where I am at now TOTALLY CONFUSED.

Ricky

[Vike17]

Ricky,

A couple of questions as thing aren't quite adding up;

1) Did you appeal the original denial within the one year time frame? The way you have explained things, it looks like you may have possibly received the original denial sometime in 2002-2003? If you did appeal within the one year, and the VA issued a SOC stating something about not having submitted "New and Material" evidence to re-open your claim, then the VA is way off base because the issue of re-opening your claim is a moot point due to the fact your submitted a timely NOD on their original decision.

2) Or did you try to re-open your claim in January 2005, with the "New and Material" evidence i.e. the copy of the C&P exam the VA said you never attended, and the additional evidence from your stroke. If this is the case and VA issued a SOC in response to your NOD stating that the evidence was not "New and Material," then the VA is also way off base.

Just curious, if number two is correct, why did you wait approximately two years to try and re-open your claim? Was it due to the stroke and the worsening of your condition?

I guess if I were you, regardless of whether number 1 or 2 is the senario, I would request your regional office to address the evidence not listed or considered on any rating decisions and SOC and grant the benefits sought or issue a SSOC. The RO is going to have to do this anyway, otherwise, the BVA will just remand it back to them because they didn't hold your requested hearing and there is additional evidence they did not consider!

Vike 17

[Guest rickb54]

Ricky,

a link to to the DRO regulations:

http://www.warms.vba.va.gov/admin21/m21_1/...5/ch05_secc.doc

These are the recent changes to the de novo process.

It is my understanding that a DRO review never included a formal hearing either pre or post.

I Quote:

The DRO has no authority to participate in a formal hearing if he/she participated in the decision under appeal.

Example: If the DRO makes a new decision based on de novo review and the appellant subsequently requests a formal hearing, the DRO does not have authority to conduct the formal hearing.

Reference: For more information on the DRO not having authority in subsequent hearing requests, see 38 CFR 3.103©(1).

Edited July 21, 2006 by rickb54