DRO or no DRO

[Tazinhawaii]

So I got my letter from the RO saying they received my NOD for my recent Migraine increase request.  Basically, I have migraines service connected at 0% from when I got out of the Navy in 2012.  They have gotten worse and now 3-4 times a month.  I'm seeing a neurologist at the VA who has prescribed meds.  Unfortunately, no matter how many times I tell the neurologist what the headaches are like (debilitating, must lie down, no light/sound), he seems to refuse to write that down in my record.  I do also have a secure message I sent to the doc about the prostrating nature in my record, but the doc never did anything with it.  Therefore there is nothing indicating they are prostrating attacks (which is why they denied my increase).  I did provide a log of my migraines since April very clearly describing these prostrating conditions but apparently the RO didn't care.  Then of course the C&P examiner (blood pressure starting to rise now),  didn't ask a thing about if they were prostrating.  In fact if I wasn't looking over her shoulder she would have recorded that I said the migraine happen once every 3-4 months instead of 3-4 per month.  Her integrity leaves A LOT to be desired!!!!!  My elbow exam was just as bad.

 

So, now I'm in the appeal process.  Sent the NOD with a similar explanation as I typed above (more professional though) and got a response letter today asking if I want a DRO or just start the traditional appeal process.  What should I do?  Any experience with the DRO actually taking my statement into account (can also bring the wife to testify).  Also, I was thinking of using the Veteran's Choice program (or Tricare) to get a second opinion out in town where the doc will probably record in the record the prostrating nature.  

 

I thought this was an "open and shut" claim, but alas not so.  Do I go through the DRO process or straight to appeal?  Suggestions...

 

Thank you

[broncovet]

I have seen this question asked and answered for about 10 years.  Before I respond, tho, are you interested/willing to do a hearing?  

There are some benefits to a hearing.  I think the most important one is you should be able to look over your cfile, and, at least see if it has your most important evidence.  If you are preparing for a hearing, you should list your top 3 or 4 documents you believe to be imperative with your claim, such as:

1.  The docs diagnosis of your condition.

2.  The docs nexus statement.

3.  The docs listing of your symptoms.

    These things may or may not be in your C and P exam.  If you get an IMO then you should put it on the list...an IMO wont help you if the ro does not bother to read it.  

   Next, the "to DRO or Not Dro" depends if you have NEW evidence.    DRO's are reluctant to "change" a decision with the same evidence available to the last decision maker.  So, if you have new evidence, then the DRO could award.  If you have no new evidence you can probably skip the DRO and ask that it be sent to the BVA without a DRO review/hearing.   Unfortunately, you may not know what evidence the RO has, and you may not be able to be sure of that until the hearing.   Its catch 22.   Only you can make that judgement call.  I normally opt for the DRO review, and then on to BVA.    I skip hearings whenever possible as I simply dont hear well and they are a source of stress for me.  

Edited November 13, 2015 by broncovet

[Gastone]

I used the DRO Hearing 06/14 and am a strong advocate of it, because it worked for me. You must absolutely, positively have "New & Material Evidence" that was not available to the original rater. If you don't submit N&M Evidence, the DRO will automatically continue the previous Rater's Decision. See M21-?? regarding DRO's.

I would attach this evidence electronically to your NOD Requesting the DRO Hearing, which takes considerably longer to get than a DRO Review. I think DRO Hearings are taking upwards of 3+ years from NOD Filing date.

Your wife and just about anyone else can accompany you to the Hearing and testify on your behalf. At my Hearing, after the DRO did his Hearing statement regarding the issues from my 2010 NOD that would be covered and how the recording and transcription (copy of which would take about 13 months to get) would be handled, I inquired regarding an "Informal Evidence Conference" that I had officially requested in 01/2014 and had never receive a response other than acknowledgment of request receipt.

At that point, the DRO said we could start off informal and switch to "Formal Back on the record and recorded" at any time I wanted. He also agreed that if he started recording, so could I (my recorder was already out.) Keep in mind, this DRO Hearing was for a 2010 NOD, an IU NOD Hearing request was filed 09/12 and not on deck to be heard.

Turns out, we never went back on the record. We just had a back and forth discussion of my 2010 NOD's N&M Evidence and he agreed with my position's. At the end, he advised me that he was awarding the denied issues and because I had opted for the Informal Hearing, he was also going to address my 2012 IU NOD, which he subsequently awarded.

When I left the Hearing room 0940 6/29/14, I knew exactly what the Decisions were. That is almost exactly, I was pleasantly surprised when I got the Award Letter in the mail EO July, indicating T&P, No Future Exams Scheduled.  At 3:30pm 06/29/14 my VSO called to advise me he already had the DRO Awards on his desk. I received the actual award letter near the end of July about 21/2 weeks after the RETRO had hit my account.

A friend had his Traditional Official DRO Hearing, NOD filed 10/13,  09/15 accompanied by his attorney. His attorney asked him scripted questions supporting his claim, the DRO just took notes. No back and forth discussion and No indication from the DRO as to Decision other than to say they would receive a Decision in the near future and that any additional supportive Evidence must be provided within 30 days. Note, he only waited about 23 mos for his Hearing.

Semper Fi

[Gastone]

What exactly do you know about the Traditional Appeals process? I don't think the vast majority of Vets really understand the difference. Prior to 2001, there was no Official DRO Review or Hearing option. All appeals were the Traditional, what's that actually mean? There was and still is, no VA Requirement for N&M Evidence when a Vet chooses the Traditional Appeal route.

My take on the "Traditional" process, your Appealed Denied claim stayed at your VARO until it was Certified by the VARO to the BVA. Same as today. During this period of time (2+ yrs), prior to Certification to BVA, any New & Material Evidence received by your VARO, caused a VA mandated review of your Denied Claim by a Sr Rater or DRO while giving "Deference" to the original rater's decision. Same as it does today. Giving Deference (Traditional Appeal Review) as opposed to the DRO De NOVO Review, giving No Deference (Fresh Eyes) is critical to the success of your appeal.

N&M Evidence received after Certification to the BVA and before the N&M Evidence Cut off Letter is received, could cause your Appeal to be transfered back to your VARO. Very important to get all N&M Evidence in as soon as possible, obviously.

The 2001 advent of the DRO Review or Hearing was aimed at cutting the appeals process time, sometimes yes - sometimes No, jury is still out. The crucial requirement of actual N&M Evidence is the cornerstone of this DRO Process. Without it, the DRO is required by VA Reg to continue the original Raters Denial. The De NOVO Review of your Denied Claim by a DRO will not take place without the submission of N&M Evidence which was not "of Record" and available to the original raters review.

Semper Fi

 

[broncovet]

The "stare decisis" principal  mostly prohibits VA from changing a decision without new evidence.  Think about it.  I apply for benefits through employee rater A.

A denies.   So I apply again and it goes to B.  B denies.  I apply again, and C denies.  This could keep going on until every VA employee who rates cases turned me down.    It would squander a lot of resources if people just kept trying until they got a very friendly judge/rater.  Stare decisis prohibits that.  If you already got denied on xx set of circumstances, then you will be denied again UNLESS you have new evidence. 

[mrsfootball]

my attorney filed a form-9 8mo. ago to the bva.I received a letter for a video conf. dec-17. my attorney cited a colvin violation in which the ro used a lack of a cold penetration test at the time of the injury a reason for denial.my att. said he is not a doctor and cannot make a medical decision.i have 2 imo from different doctors who are xperts in cold injuries.a footnote at the time of the injury the doctor-a capt.-said I had two badly sprained ankles.this is why no test was done.this happened on dec.20 1969.i was admitted to a navel hosp.on dec 25 1969 for frostbite.i was awarded 100% dec.2014. my attorney argues the 100% should begin in 2010.i was awarded 80% in 2010 up from 40% in 2010.all the evidence is there for a 100% in 2010 same evidence.will the ro admit there mistake.   thanks

[broncovet]

Mrs Football:

   Please start a "new" post to ask questions not related to the original poster.  Since you are new, I wlll answer your question, but please start a new post in the future.  

    It sounds like your attorney is "on the ball"!   I realy would like his/her name, as it sounds like he has not only won you 100% but is also fighting for an Earlier date and much more retro.    No, the RO probably wont admit their mistake.  4 years of retro is probably six figures, depending upon how much you already received and number of dependents.  He will probably have to appeal to get your retro for an earlier date, since RO's dont like to hand out 100,000 checks easily.