C&p Refusal At Dro Hearing

[K9MAL]

At my DRO hearing I was asked if I'd submit to another C&P to determine if my percentages should be raised. The VSO and the DRO were both pushing for it and I said I would submit to one if it was absolutely necessary. However, really I'd just rather get a denial and move on to the next level of appeals.

I read Benjamin Krause's DRO experience and he's stated that you can refuse a C&P at your DRO hearing. I'm wondering if anyone else has told them to pound sand or what the repercussions might be?

I'm contemplating drafting a letter and sending it to the DRO telling her that I don't want another C&P and would prefer for her to review the available evidence to make her decision.

Thoughts on the matter?

[Berta]

It sure is BS K9MAL but you are willing to persevere.......

Maybe this case will help.....

The BVA site went down for maintenance just as I was copying this info........and I must admit I said some bad words....

My VA OLA paranoia makes me think they knew I had just found a beauty of a case. ( Ha Ha)

ORDER

The claim of entitlement to an increased rating for hearing loss is dismissed.

The claim of entitlement to an increased rating for tinnitus is dismissed.

The claim of CUE in an October 22, 2008 decision which denied service connection for hearing loss and tinnitus is granted, and an earlier effective date of May 30, 2008, for the awards of service connection for these disabilities is granted.

http://www.va.gov/vetapp14/Files3/1419343.txt

In this fairly recent BVA decision the BVA makes this point:

"If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision "has the same effect as if the decision had been made on the date of the prior decision," 38 U.S.C. §§ 5109A(b), 7111(b).

As noted above, the Veteran's appellant's main claim as to CUE is that the RO impermissibly substituted its medical judgment when it failed to grant these claims even in spite of the fact that the only medical evidence of record was a positive medical opinion. The Veteran's representative argued that this was therefore a Colvin violation. The Board finds this argument to be without merit however, as the RO did not use its own medical judgment in forming this opinion, it indicated several reasons why they discounted this opinion, therefore, this is merely an argument with how the facts were weighed or evaluated, which, as noted above, cannot rise to the level of CUE."

BUT.............

"However, the Board notes that the RO, in its October 2008 rating decision, indicated that one of the main reasons they discounted the private positive medical opinion was because there was no evidence of record that the Veteran has been exposed to hazardous noise. The Board does not find this consistent with the evidence of record at that time, namely, the Veteran's personnel records, which show that he underwent rifle training and had an expert marksmanship badge. In essence, given the Veteran's contentions and the information in his service records supporting a finding of excessive noise exposure, the Board is unable to identify any contrary evidence to support the RO's finding. In addition, such noise exposure clearly consistitutes an injury sustained during active duty for training, in light of the medical opinion of record at the time of decision linking his hearing loss and tinnitus to such exposure. As this undebatable error was the primary basis of the RO's denial, the Board concludes that the error manifestly changed the outcome of the decision at the time it was made. Such a mistake constitutes clear and unmistakable error and, as a consequence, an earlier effective date of May 30, 2008, for the award of service connection for hearing loss and tinnitus is granted."

Yippee.

So in essense the Vet rep argued the wrong basis of CUE but still the BVA ( they read EVERYTHING because they dont want their decisions to go to the CAVC to be overturned on legal error)

the BVA did find that a CUE occurred and thus awarded it regarding the HL and the tinnitus.

This is why Ben Krause did that article recently on how we must Read every single word in any negative decision.

And we have to read these decisions more than once or twice........

because VA plays war games....the war of the words..........

"the Board is unable to identify any contrary evidence to support the RO's finding. In addition, such noise exposure clearly consistitutes an injury sustained during active duty " etc ....meaning
their is no other known post service etiology, but for the veteran's MOS, that would warrant the past past denial.

I am sure that is the case here in your tinnitus situation.

I have used BVA cases, to support legal points, in past claims I have had with the RO.

Do not hesitate to use this BVA decision as to their legal premise here.

I am assuming the past C & P s for tinnitus that you already had ( which did garner an award)

did not really consider that you have no other etiology or cause ,but for your Mil service and your past posts here revealed the doc did link the tinnitus to your military service, so as you said.......

a better EED for the tinnitus is sure in order.

And if the RO fails to do that right this time, a CUE claim IS IN ORDER on the older decision and even during the appeal period you will get if they make another bogus decision on the tinnitus.

Edited January 12, 2015 by Berta

[Navy04]

That's what scares me about asking for my 100% Temp to be permanent. Sorry to hear of your issues, good luck

[K9MAL]

It sure is BS K9MAL but you are willing to persevere.......

Maybe this case will help.....

Thanks Berta! Reading the case now.

[K9MAL]

I am sure that is the case here in your tinnitus situation.

I have used BVA cases, to support legal points, in past claims I have had with the RO.

Do not hesitate to use this BVA decision as to their legal premise here.

I am assuming the past C & P s for tinnitus that you already had ( which did garner an award)

did not really consider that you have no other etiology or cause ,but for your Mil service and your past posts here revealed the doc did link the tinnitus to your military service, so as you said.......

a better EED for the tinnitus is sure in order.

And if the RO fails to do that right this time, a CUE claim IS IN ORDER on the older decision and even during the appeal period you will get if they make another bogus decision on the tinnitus.

Do you only reference the case number or do you print it out and submit it as evidence?

You are correct that there was no other etiology or cause and the hearing examiner opined that the tinnitus was due to military service.

[Berta]

Of course the best thing going for you is the Fast Letter on HL and MOS (I think it is FL 10-35) and it is available at hadit.



But I noticed something in my older reply there:

" Posted 21 April 2011 - 07:37 AM
Interesting topic because the VA blank AMIE C & P exam for audio was changed in Feb 2010 but not after date of this Fast Letter.

http://www.vba.va.go...ms/disexm05.pdf "

I wonder if the Audio C & P exam has, in fact, changed by now....? to replect this fast letter.

You Asked:
"Do you only reference the case number or do you print it out and submit it as evidence?



You are correct that there was no other etiology or cause and the hearing examiner opined that the tinnitus was due to military service."

What I have done ,is to copy and past the BVA quotes I needed,into my rebuttal to VA and also I put the BVA hyperlink into my rebuttal, and then refer to it, in my statement and list it as evidence, attaching the first page of the decision (that contains the Citation and docket number, and then the specific page that contains what I refer to ,in the decision,highlighted with a magic marker.).

This involves legal VA case law, as implemented by the BVA.

BVA medical decisions do not help other vets with similar claims.

For example:

I had problems when I succeeded in my accrued claim for direct SC death, due to AO DMII , and requested that my RO pay me back a FTCA offset.

I had a BVA case long ago that was rendered moot or denied ( I forget which) because I had won at the RO level under a different entitlement theory, as the case was pending at the BVA..

The BVA stated clearly in that old decision that if I succeeded eventually in a direct SC death, the FTCA offfset would have to be refunded to me.

(But this had never been done before by the VA)

The RO ignored my initial letter whereby I asked for the refund under some citation ...forget what it was.Ron Abrams of NVLSP told me the same thing in 1995...direct SC death trumps 1151 FTCA death...but there has been no similar case like that since ,until mine came up.

In my second letter I did what I mentioned above, quoted the BVA decision (which happened to be an old decision I received), gave them the hyperlink and then I enclosed as evidence the entire decision (it was not too long) using a highlighter for what the BVA had stated.

I had no idea at the time of this much older decision that I would end up proving direct SC death under 2 more separate theories.....

But I use the regulations as weapons......

Then my RO does what it has done to me for the past 20 years. It tried to ignore my letter completely.and when I raised hell they denied the retro refund.

I called up General Counsel.in DC . I said my settlement was still pending for some more negotiations. The VA owes me some more cash.

The lawyer who had settled with me long ago got very upset at that !until I explained my problem.He knew I was only trying to get his attention. This had to be fixed ASAP and GC knows I can be a pain in the butt.

I sent or hyperlinked to him in email him the BVA decision I mentioned above and copy of what I had received from VA, and copy of the DMII AO death award letter. And then his boss called my VARO and faxed to them basically the regulations the BVA had used in that decision.

Then the check was in the mail.

In other replies/ rebuttals I have had to the RO, I tend to use M21-1MR much more than BVA decisions...however, a BVA legal citation for a similar legal issue is icing on the cake.

BVA decisions on CUE also helped me prepare my SMC CUE and I think I sent one in with my SMC CUE, but only because it contained, along with my M21-1MR enclosures, as evidence, of exactly what the legal essense of my CUE was......

which was basic established VA case law, within 38 CFR 1114, that those clowns at my RO tried to manipulate and tell me this regulation did not apply to my husband at all. because he never applied for SMC.

This bears repeating.
Whenever a veteran has 100% SC for one disability and a rating at 60% or higher, for another independent SC or 1151 disability, they DONT have to apply for SMC. Their rating sheets and last award letter clear reveals the 100% plus 60 criteria if they have it.

If VA does not consider them for SMC and then award it, if the above criteria is met, they have committed a CUE.

In your case, you might find some good legal links within M21-1 MR as to how they handle CUE claims.

M21-1MR also identifies precedent CAVC decisions too that can bolster any type of claim as well..

In my pending Go CUE Yourself claim ( an error they made in an award letter that was generated by a GCY CUE claim award,in the same award letter,

I copied and pasted the CUE regs from a BVA decision right into my CUE claim and added that they had committed a CUE during the appellate period,to my detriment, and then explained exactly how they did that ....etc etc.........

If your tinnitus was at least at 10 % disabling at time of the older decision, , I fully believe they made a CUE in the older decision.