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

[Ricky]

Rick from the link you provided:

The Decision Review Officer (DRO) is a senior technical expert who is responsible for holding post-decisional hearings and processing appeals. The DRO may have jurisdiction of any appeal.

Duty Description

1 Hold informal conferences and formal hearings.

2 Evaluate the evidence of record including the need for additional evidence as a result of information obtained during the hearing.

3 Make a decision.

4 Make direct contact with appellants and their representatives.

Your quote about the DRO participating in the hearing refers to the fact that a DRO who worked on the appeal can not participate it must be a completely new DRO who conducts a hearing when requested by the vet.

Vike - Sorry for the confusion. My appeal contains several items that came about at different times. The original claim which contained the Fibro claim was denied in March 2003 due to pain without loss of motion. I sent NOD waited, waited and waited. In March 2004 I felt that one year was long enough so I contacted VA about the NOD. They claimed they never received it. I provided certified mail receipts and they simply said that I could have mailed anything so the receipt proved nothing. In July 2004 they sent me a letter and stated that If I requested they would reopen the claim. So I requested they do so. As time went on I had the stroke and filed a claim for it. In July 05 I got the rating decision and they had combined my claim for fibro and the stroke and residuals of the stroke. In that rating decision they provided that the claim for fibro had not been reopened due to lack of new and material evidence. The VCAA that followed the Jul 05 rating decision provided that the claim had been originally denied because I failed to show for the Dec 02 exam. This was not the case. The claim was denied because I had pain without loss of motion so they say. I do not have any idea how they came up with this "denied due to failure to complete the 2002 exam" crap. Hope this explains it a little bit. Hell don't feel bad cause I am really out in left field on it.

[Vike17]

Ricky,

Now things are a bit clearer. Wow, what a mess! Here's how I would go about this;

"The original claim which contained the Fibro claim was denied in March 2003 due to pain without loss of motion."

I'm not sure how this condition is rated, it may not warrant a percentage because you don't have loss of ROM. However, if you have the three ctriteria for service-connection, you should still received at least service-connection at 0%. To better advise you of the rating percentage, I would have to look at the rating schedule. Is this claim already service-connected or was this a claim for increase?

"I sent NOD waited, waited and waited. In March 2004 I felt that one year was long enough so I contacted VA about the NOD. They claimed they never received it. I provided certified mail receipts and they simply said that I could have mailed anything so the receipt proved nothing. In July 2004 they sent me a letter and stated that If I requested they would reopen the claim. So I requested they do so."

The VA dropped the ball on this one. You do not have to prove what was in the envelope when you send stuff to the VA! Generally, a copy of the dated NOD with the mail receipts are sufficient enough. When you called the VA in March 2004, did you talk to an actual VSR or just one of the 1-800 jockeys. I would assume it was the latter. An experienced VSR would know better! However, off the wall things have happended before. Anyways, here's what you should do: write a letter to your Regional Office stating 1) Demand that the VA process your timely filed NOD and remind them that your dated NOD and mail receipts are sufficient under federal to establish the fact that you submitted the required paperwork in a timely fashion, 2) request that you stroke be considered as secondary to your original claim (your effective date for the secondary claim should be July 2004 when you initially told VA of this).

"In July 05 I got the rating decision and they had combined my claim for fibro and the stroke and residuals of the stroke. In that rating decision they provided that the claim for fibro had not been reopened due to lack of new and material evidence."

The two conditions may fall under one etology and, therefore, cannot be seperately rating due to pyrmiading. As stated above, I would have to look at the rating schedule to see. Since you are submitting the letter stated above, this rating in a way becomes moot. However, you still need to write a NOD concerning the stroke and the residuals. You would only want to contest the evaluations of the stoke and residuals if after looking at the rating schedule, it is clear they should be rated seperately. I would combine this NOD action, if warrented, with the letter above. That way you keep it simpler then writing two letters

"The VCAA that followed the Jul 05 rating decision provided that the claim had been originally denied because I failed to show for the Dec 02 exam. This was not the case. The claim was denied because I had pain without loss of motion so they say. I do not have any idea how they came up with this "denied due to failure to complete the 2002 exam" crap."

In the letter above also submitt a copy of that C&P exam and remind the VA that you attended this exam and that according to the original rating decision that that wasn't the reason why the claim was denied. Otherwise, had you not attended the exam, there isn't any way the VA could have made the deterination that you had pain but no loss of ROM! To end the letter, I would request that your original NOD be reviewed by a DRO. Normally, you can only have one DRO review per issue; however, your previous DRO review only covered the issue of re-opening the claim. Your original NOD is still an open issue and covers the actual evaluation of service-connection (if this wasn't a claim for an increase), and the evaluation of the rating pecentage! Also, when this gets to the Appeals Team, the Appeals Team Coach should assign this to a dfferent DRO than your previuos one, so there is a fresh set of eyes on the claim and isn't any biased decision being made. Also request a hearing with this DRO review and make sure you remind him that that your original NOD is still open! If at all possible I would avoid taking this to the BVA, because the way you have presented it, the claim will be remanded and you'll receive the grant in benefits sought or be issues a SOC on the open isses anyways! You can accomplish this at the RO level in less amount of time.

One side note, if all else fails and the RO doesn't acknowledge your letter, consider going to the Court with a Writ of Mandumus. The Court very, very rarely grants these , but the VA RO's hate them and it will probably propell them the address your issues!

Vike 17

Edited July 22, 2006 by Vike17

[Guest rickb54]

Ricky,

The reason De Novo became law was to allow the veteran a second bite at the apple. As I stated before I never heard of the regional office's haveing conferences with a veteran when it came to a De Novo review. I myself have won 3 De Novo reviews, and right now have two pending. It seems to me if every veteran were to ask for a conference on their de novo would just add to the holdup of the process.

Remember a true de novo is a second look at the same evidence of record. I fail to see the necessity of any post formal or informal conferences but this is just my opinion.

Your first indicated: and the denial of my 10 requests to have a meeting with the DRO.

I quote again:

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.