Dro Hearing - What's It Like? Plan Of Attack?

[K9MAL]

I have a DRO hearing on the 6th. I've read a few different things online but was wondering who else might have some input? Just curious, do you argue your case or just present facts? Is it a back and forth type conversation or just cut & dry? What's it like?

Do you lead off with questions? As an example: Why was my increase denied? What evidence do I need to prove my claim?

Or, do you just lay out the evidence that contradicts their "reasons and bases" for denial and call it a day? Are they typically pro-veteran and understanding or can I expect to have my blood pressure rise?

Happy New Year!

[NavyWife]

On the knee issue--

I'm not sure if I'm understanding exactly, and please correct me. But it sounds like you're saying you had a diagnosis in-service of the knee issue however when you went to the VA C&P exam the examiner said that your range of motion was normal. If the C&P exam said the range of motion was normal then VA could not compensate for that. The exception would be if you had other evidence submitted showing that you had current knee issues due to the same diagnosis.

Did they give you anything in writing with the reasons they are continuing to deny?

It sounds to me like they are pushing you towards IU so they don't have to give you any backpay if you drop these other issues... However, I think IU is a great thing because it will allow you to be paid at the 100% rate. Granted you cannot work and receive that at the same time. But one option is you could pursue IU now to be paid at the higher rate, while continuing these appeals due to possible backpay. In my opinion you should file for IU if you're not working.

[K9MAL]

NavyWife - Sorry if I'm being unclear. Initially, in 2002 my left knee was denied service connection. Although, there were numerous reports of bilateral PFS while in service. The initial denial reads as such:

FACTS: SMR show veteran seen for bilateral knee pain and swelling in May 2000; he was instructed in physical therapy of knees; crepitus was also noted; X-rays normal; diagnosis: acute bilateral insertional patellar tendinitis, chronic bilateral PFPS.

In October 1999 he attended "knee school", a physical therapy class. He was seen prior to the class for pain and given a low impact aerobics training; diagnosis patella femoral syndrome (PFS) both knees. Veteran seen also in Aug 1999 for PFS diagnosis and treatments.

VA Medical Center examination dated November 6, 2001, shows subjective complaints are of pain in both knees, right worse than left. He can walk about a mile without experiencing pain. He avoids stairs as these do cause pain. Range of motions shows right knee: flexion 130 degrees, pain on full range of motion, no lateral instabililty, drawer sign negative, McMurrys negative. Diagnoses: Left knee: normal exam, Right knee: likely internal derangement with limitation of motion.

Now, in 2014, they granted service connection and it reads as such:

Service connection for left knee patellofemoral pain syndrome has been established as directly related to military service.

An evaluation of 10 percent is assigned from January 15, 2013. Although you claimed condition as secondary to right knee and ankle, VA examiner opined that currently disability is associated with complaints in service.

We have assigned a 10 percent evaluation of your left knee based on:

- Painful motion of the knee (38 CFR 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995), have been considered and applied under 38 CFR 4.59.

In my opinion, which may not mean much, they originally should've granted the service connection in 2002 under the same principles as they did in 2014.

The doctor's opinion from my most recent C&P:

c. Rationale: His left knee patellofemoral syndrome is not a result of his

right knee condition as his left knee problems began around the same time as

his right knee. His right ankle injury also did not cause his
left knee
patellofemoral syndrome as ankle injuries are very unlikely to lead to

patellofemoral syndrome in a contralateral knee.

However, it is my opinion that his current left knee patellofemoral syndrome
is at least as likely as not a result of his left knee patellofemoral

syndrome that he was diagnosed with in service. He was diagnosed with
chronic bilateral patellofemoral pain syndrome on a note dated 5/13/2000.

Patellofemoral syndrome is most often a chronic/recurrent condition.

[NavyWife]

Ohh ok, that makes sense now!

[K9MAL]

Ohh ok, that makes sense now!

Do you see what I'm saying or am I in left field? To me, it should've been granted in 2002, and then they decided to grant it in 2014 with the same evidence because the C&P doctor and rater actually paid attention this time around.

[FormerMember]

As long as this claim is alive you can pursue the earlier effective date via the evidence (controversy). The evidence of record shows entitlement began in 2000. Effective date has to be 2002 filing. File NOD and say incorrect. You don't say CUE. It isn't. It's a brain fart that needs to be corrected at a DRO or BVA hearing. Or go to DC pronto on traditional path. If VA wants to dig in, the quicker you get it to the CAVC, the better. As long as it was a matter of record and in the c-file in 2002, you win. Then you have to fight the staged ratings battle to now. That's a nice piece of change they're trying to cut you out of. Remember, if it goes over $25 K, it needs three signatures and one has to be the VSCM or Asst. VSCM.

Now , if you let this go without appeal, VA will say you agreed with the rating date or you would have NOD'd it specifically. You can never get your original 2002 date if you let this one slip away. If you filed for increase in two years and asked for it, you would not get it. You might get up to a year before the date of filing for increase but never 2002. Once you let it slip away, it's gone for good unless you can find CUE. I do not admonish you personally. I merely mention it for others. Good luck, sir. Great piece of evidence, too.

Edited January 9, 2015 by asknod

[lotzaspotz]

I vote get it out of the RO as soon as possible. DRO reviews in my experience have been a waste of time. Get it to the Board and if need be, on to the CAVC, where you stand a decent chance of winning. The sooner the better.