Dro Hearing decision

[jfrei]

Apparently I did not read my DRO decision good enough the first 3 times, but if you read the last page she states that the OGC decision was made with all of the cited evidence in my claim, that cannot be true. They made their decision a week before the engineers report I hired was submited into my claim as new evidence. How can she say all evidence cited in my claim was considered in the decision from the OGC if they never even seen the report it shows the dates when all was submitted and it says she got her answer the 23rd from them but then on the 30th the day she wrote up the decision my new evidence was submitted into my claim? She looked at it the day she wrote her decision and entered it in that day even cited a few things as true but only the bits she used to deny as OGC said to . How can she just use some of the report, if it's all true wouldn't the whole report have to be cited and weighed in? She was nice about deny it saying well there's nothing I can do here but I will help you with the appeal and saying they can approve the things I can't.
 

[FormerMember]

I guess I see it as two different concepts, Loyal.  You have an accident and the military is free to characterize it how they will- LOD or not LOD. On the other hand, you bought an item with a recognized product liability issue and it hurt you. Let's pretend it was a razor and it disfigured you. You could get medical at the Base Dispensary but you could sue the manufacturer of the razor company for your scar.  You should be able to as they have virtually nothing in common. The Army wasn't responsible anyway technically. Since he never got anything from GM of substance, he can go after the VA for a rating. With LOD, VA is obligated to accept it. LOD is a very powerful concept that the CAVC always grants. VA converting DoD's LOD finding is void ab initio. No can do. Never.

[ArNG11]

7 minutes ago, asknod said:

I guess I see it as two different concepts, Loyal.  You have an accident and the military is free to characterize it how they will- LOD or not LOD. On the other hand, you bought an item with a recognized product liability issue and it hurt you. Let's pretend it was a razor and it disfigured you. You could get medical at the Base Dispensary but you could sue the manufacturer of the razor company for your scar.  You should be able to as they have virtually nothing in common. The Army wasn't responsible anyway technically. Since he never got anything from GM of substance, he can go after the VA for a rating. With LOD, VA is obligated to accept it. LOD is a very powerful concept that the CAVC always grants. VA converting DoD's LOD finding is void ab initio. No can do. Never.

Isn't that a daisy, though. can't argue with yourself.  Never really thought of an LOD quite in that way. Hmm.  

[FormerMember]

See if you can wrap your minds around LOD. There are two different concepts if you have read the law. This one delves into old VA and DoD law. But it gives you an idea of how the CAVC folks look at LOD

 

 

AlleyRL_12-691.pdf

[FormerMember]

Actually, you all would like this one better. It really shows where LOD is God's gift to Vets. This guy smoked them for a CUE all the way back to 1971. LOD is the same thing as saying-Service Connected. 

 

Gopan-3553.pdf

[broncovet]

When I was in the military, stateside, I was permitted to work a part time job on my off duty hours, provided that the employer was in complete agreement the military had to take priority.  I was NOT allowed to miss any military assignments because of my part time job, ever.  And, if the military needed me in off duty hours, I was to drop my job and go.  

The question occurs is if 

the Veteran was injured while in service but in the employment by others.   When I go to the VA, I am often asked, "Is this a workmans comp or insurance issue?" when I check in for the appointment.  It will be interesting to see how this plays out, if this Veteran has the requisite nexus statement from a VA doc, and I presume he does.  

[broncovet]

As you know the VA prohibits what they call "pyramiding", that is, compensating a Veteran twice for the same injury.  

4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

It seems VA is absolutely anal about being certain the Veteran is not compensated twice, and goes to great lengths to make sure this does not happen.  While I agree that 4.14 does not address "GM paying" for the injury and then VA paying, too.   My first guess would be that the courts would say that the agency interpretation of 4.14 would be controlling unless the court found it arbritray or capricious, or containing CUE, or otherwise in conflict with regulations and case law. (Using the Auer defense, formely referred to as the Chevron deference)  

    Of course, a CAVC interpretation of 4.14 assumes that this Vet would be denied, and have to appeal to the cavc, and that, of course, is not necessarily true.  The Vet could well win this at the board level, and the Board may not even address the pyramiding issue with GM.  Or, the RO could possibly ask the OGC to opine on this issue, if it has not been previously addressed.