Blind Denial - Want to avoid flat-out appeal. What would be your course of action?

[K_C]

Hello all and thanks again in advance for the advice. I can engineer and troubleshoot complex enterprise and service provider networks, reclaim compromised systems, and develop robust web applications, but what I have not managed to do is understand and navigate the VA. It's like spaghetti in my mind that constantly gets stirred. The more I learn, the more confusing it gets.

So, most recent claim I got a C&P for one condition but not for the other two, which were denied. I call it a Blind Denial because the reason they gave for the decision was obvious I did not even look at your claim material.

Since the decision, I have acquired a favorable IME. There are a few things I know I can do, but I'm still not clear on the pros and cons of each, and that each offers its own benefits in certain situations. My primary goal is expediency and I am willing to sacrifice claim date, etc., to simply get a service connection and rating. I believe at least one of the denied claims is rock solid. As in, there's no way I can see a rational person could even approach denying it after having actually looked at it.

The options I think exist (please feel free to skip this part, I'm just showcasing my ignorance really):

1. NOD Appeal to BVA - Wait in line for years - Want to avoid as much as possible
2. Ask for local hearing? - I'm not actually clear on this, I've been told different things. Can I request a local hearing and actually get one in less than a year?
3. Reconsideration - I think this is where there has to be New and Material Evidence, no? I'm not even sure if there are speed advantages here
4. ??? - I've heard of other things here and there, some I think are just different names for the same thing. Hence my persistent state of confusion

If someone has time and knows all the options I have at this moment, I would greatly appreciate a plain [for dummies] list of those options and their pros and cons/pitfalls in this context (or a general context)? If you were me and your primary goal was speed over all else, in which order would you personally pursue each option? If not, something also helpful would be a knowledge article or other forum post that covers the general options available immediately after an original claim decision is rendered (I have as of yet been unable to pin one down).

Thank you in advance for your help. Best of luck to all on your claims. If your name was Mr. Lockheed Martin or Ms. General Dynamics, you'd have no issue squeezing millions out of the DoD in the name of patriotism. But us, well, on we fight! 

[K_C]

Just noticed your edit. Well, I hope they don't attempt that in my case but I've learned that they're unpredictable. I might get someone who sees it and puts weight in it, I might get someone who dismisses it entirely or not even look at it (yes, I think this really happens).

I'm backing it up with additional N&ME such as the sworn statements in hopes of hedging my bet. I also have one more medical record to add to the mix.

I'll request the re-open/reconsideration based on N&ME and have a reminder in my calendar to file NOD by deadline. I'm open to all further advice and words of wisdom.

Thanks again!

[Berta]

I think the Reconsideration Request is the best bet since they did not have the report when they denied.

Was Dr. Bash able to cover all of your issues with a full medical rationale?

Dr. Bash's 2 IM)s for me years ago became the template for the criteria for IMOs I posted here at hadit years ago.

He definitely knows the score, as he is a former VA doctor . Strong N & M evidence is required for a successful reconsideration.

You have that!

 

 

 

[K_C]

Hi Berta,

It's my first IMO. The formatting isn't fancy, but the rationale feels fairly solid. I don't know whose hands it will land in or how it will play out, but what I have I consider to be worth the price I paid. I would pay it again, regardless of how it gets treated at the VA by the first person to pick it up. If it winds up at the BVA, I feel the chances of it being given the weight it deserves increases. VAROs feel like wildcards to me.

[bluevet]

KC, that is exactly the correct position to take when it comes to IMOs. When developing any claim, a veteran should be developing the claim for the BVA, not for the raters or even the DROs. It is not necessary for a doctor to personally see a veteran, when that doctor is opining on service connection, which should be the primary purpose of any IMO. As long as the opining doctor has access to all available medical records, and there is no reason for the BVA to call the doctor's credentials or opinings into question on the basis of credibility, the BVA will assign the IMO it's due weight. 

Was your original claim filed as a FDC? If it was, and you only have mere months invested so far, it may be worth considering filing a new claim. You will lose those few months, but if you feel strongly enough about your new evidence, you can file a new FDC claim and submit the new evidence, which should result in a new decision within 125 days. You can also include a statement of the case pointing out that your previously denied claim did not afford you C&P exams for some of your claimed conditions; outlining any reasons why the C&P exam you did receive was not adequate, and requesting a new exam on that condition.

I don't have a lot of faith in first line raters to get it right, even with a strong claim that is properly worked. But again, if you are in a hurry to have your new evidence reviewed and a new decision issued, and you don't have too much back-pay at risk, this would be your fastest route to a new decision.

I'm not sure, but you may even be able to go this route and then, once you get a new decision, file a CUE claim on the original decision if you have the grounds for it. Unfortunately, as far as I know, the VA's breach in the duty to assist, by not affording you C&P exams, cannot form the basis of a CUE claim (See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). That being said, when it comes to what does and does not constitute a CUE, I would direct you back to Berta.

Edited September 18, 2015 by bluevet

[broncovet]

Since you are apparently in the one year appeal period, A CUE is not applicable EXCEPT Berta's famous "Ask the VA to cue themselves". 

There would appear to be little/if any incentive for you to "raise the bar" with the CUE increased standard of review.  

This leaves MFR, appeal to the DRO, appeal to the Board.

1.  MFR. A MFR has one caveat:  Its not a NOD and could jeaporidize your effective date if VA does not complete your MFR within  one year (likely) , AND you do not file a NOD.

Solution:  Go ahead and file a MFR, but be sure to also file a NOD shortly before your year is up so as to preseve the effetive date.  

2.  DRO appeal.   This would be my choice thou you could wait and request a DRO REview anytime before your one year appeal period is up.  DRO should be faster than a BVA appeal, in fact, most BVA appeals involve a SOC based on a DRO denial. 

3.  BVA appeal.  YOu already learned the downside..it takes a long time. However, everything takes a long time at VA.  

[K_C]

Thank you bluevet and broncovet.

Yes, my claim was FDC but I initiated it July of last year. I didn't finish filing it until March, then they puled it out of FDC. There's potentially a lot of retro pay on the table, but I'm not as concerned about that as just getting it done. Ultimately, the FDC route is not a good option because I am preparing a single-condition rating increase FDC claim that I don't want to pile other conditions on top of. My thinking is maybe if it's just one condition, they'll devote enough time to it to better understand the details. Perhaps I could wait for the increase claim to complete then file it, but that feels like a lot of lost time that I could be in line for something else.

1. What is an MFR (Motion for Review?) and how does it differ from a request for reconsideration based on N&ME?
2. This is confusing... What exactly is a DRO appeal? My VSO previously clarified that a request for a DRO hearing is nothing but an NOD with a DRO election, and it takes just as long and actually delays the case getting evaluated. Was he talking about something else i.e. am I confusing two different things?
3. BVA appeal is a last resort, basically. Yes. I want to avoid if at all possible.

I don't imagine any of these options can be sought simultaneously, but figured I should confirm that is the case, yes?

Thank you all for your patience.