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.
 

[Berta]

"because she got her answer from OGC who never saw the report "

so have you sent that report to the OGC?

VA pulled similar Bulls--t on me years ago for a FTCA case.

Then I found out the RO had deliberately withheld critical evidence from the OGC.

I had copies of the evidence, copied it again,called the VA medical team they withheld it from,

raised hell,sent them the evidence that VA had but withheld from them,and next thing I knew, OGC called me up and was talking about the settlement negotiations.

We must check and double check any issue that goes to the OGC to make sure the VA has not withheld probative evidence from them.

You have a lawyer, He should be very considered about this and he should be the one to get this evidence to the OGC, if not you....

...what has he done about it?

[jfrei]

Not much as far as leg work I know I have this problem were I cant get this out of my head and wont stop at anything I had recently emailed Ms hickey two weeks later had my DRO hearing scheduled then they scheduled it the week the pope was in town. Had DRO hearing with my attorney right afterwards she said she couldn't give me an answer but had to refer to the OGC. I said ok got the report finally two weeks later she got her answer to deny. She said she has to do what OGC says even after I gave her the report that states the two reasons they said to deny was contract dicted. Docket No 07-12 701 the VA's duty to assit does not include obtaining forensic evidence, but can at my own expense. So I did while I waited for the report she got her answer. The day I gave it to her was the day she wrote the decision but she said she entered it in my file and she can help with my appeal. My attorney only said well you have 1000 to 1200,days away to the appeal 31 days ago. I have found quite a few cases were forensic opinions are entered in as evidence and are considered creditable my engineer has already been involved with 100's of cases brought to court working for the police department that wrote my accident report. So there's no conflict of interest so Berta should I reach out to my RO next week and see if there is a way to get the OGC to get a second look? I am so mad at myself that I never looked to see on the paperwork when she got her answer and when she entered in my report. I am still a little concerned of what they will say? No report not creditable even though he had more information in front of him then the VA did and worked with thelead officer in charge of my accident.

Edited February 6, 2016 by jfrei

[Gastone]

I kinda figured there was a DUI in there, somewhere.

Pre-Nam I was not a drinker but when I returned, I think I might have been classified as a "Functioning Problem Drinker." Very few nights past that I didn't get well tuned. Always did everything, loving ,fighting,dancing and driving, much better with a few drinks on-board. This went on for most of the 70's. Never had any tickets, arrests or accidents, just lucky.

Most of the Nam Combat PTSD Vets that I meet with, experienced the same type of drinking problems, some still are. The MH Professionals say it's a form of self-medication, even though you may not be aware there's an actual MH problem.

You might be well advised to get yourself checked out. Your VA PC Dr can give you a PTSD Pre Screen Test and dependent upon your score, refer you to the VA MH Department for further testing and treatment. If found to have PTSD on either of the Pre-screan tests, I think a PTSD FDC would be warranted.

Semper Fi

 

[FormerMember]

Your saving grace on appeal is simple. Line of Duty determinations may only be decided at the time of the accident. The VA is not permitted to reach back into the past and declare an accident willful misconduct due to "not in the line of duty" after the fact. This is called res judicata. Once that determination was made and entered into the service record, only the military branch you served in could make a revised determination. It also may not make the determination on its own nor can the VA inveigh and ask them to reconsider the decision. You, personally, would have to ask for a redetermination much like asking for an upgrade on your discharge (if you had a big chicken dinner). As the LOD determination  favors you, you wouldn't disturb it.

Since you already have the LOD determination in your favor, nothing VA can say or do will change it. Your cites to a minor infraction of driving on a suspended license alone do not rise to the level of willful misconduct. You must understand there are certain decisions that simply cannot be made at the RO. This is one of them. In VA's eyes, you are asking for a second helping of compensation after GM settled with you. VA cannot digest that. They feel you are not entitled. Hence they sent it up to the OGC for either a Precedent Opinion or simply an up or down. OGC is not going to throw in the towel because this is too controversial. 

I suspect you'll have a 50-50 chance of getting a bum reading on it from the BVA and have to go up to the CAVC. Once the Judge sees the LOD determination in your favor, s/he will reverse or vacate and remand it to grant your claim. LOD is a powerful tool just as the Presumption of Soundness is at entry to service. LOD, however, can never be rebutted, as the presumption of soundness can, by the VA because it was a military determination in the first instance and can never be subject to post hoc VA review. 

Winning a claim doesn't always follow a straight line. Every claim is unique as you are coming to find out. A word or sentence in the wrong place can cause a claim to sit gathering dust for 20 years like mine. A minor change in the SOC language would have made the claim moot and I would never have won. Fortunately, VA doesn't obey the rules of law. They make a decision and only then work backwards to attempt to find the law or regulation that will support their finding. This is why we have appeals-to correct the errors. Any unique case like yours was bound to be denied because that is what VA does. They don't want a stampede to the compensation window so they hand out bogus decisions. If you fail to appeal, then they were right all along. The only way to get justice is to pursue this to the end. According to the Supreme Court, Veterans are right 65% of the time. That clearly means VA is in error 65% of the time. 

The Office of General Counsel argued vehemently against my earlier effective date for six months at the CAVC in 2012. When we were several days away from oral arguments, they suddenly had a magnanimous change of heart. The reason was simple. They read the c-file and realized they were wrong. In this game of VA poker, VA denies with no good reason. Why? Because they can. When you finally get to a real legal venue where bullshit walks and evidence talks, they have to concede the obvious facts. Until you get in front of a BVA Veterans Law Judge who is unafraid to buck Dep. Sec. Laura Eskinazi and declare the LOD determination to be the legal finding that you did not engage in willful misconduct, you will continue to lose. The CAVC is not an arm of the VA and is thus immune to their influence. The power to persuade a CAVC Judge that the VA can overrule a LOD decision has yet to occur. Your claim is not unique. I'm not going into Westlaw this morning to find the cite to defend the LOD because it's $59 a minute to research it. Trust me and your lawyer that you are on firm legal ground. VA has tried numerous times to pull this stunt and loses. They pretend they didn't get the email and have to learn it again and again.

Think of it like Groundhog Day. You just saw your shadow and there's six more years of appeals. The win is in the can. You just can't enjoy it until a Judge says you can. Relax. You're in the catbird seat but need a Higher Authority to declare that you won. I began in 1989 and I'm just now filing my last NOD for the correct effective date of one of my 100% ratings. It took them from March 1994 to September 2015 to grant it and the Seattle RO purposefully gave me a bogus effective date of August 14, 2012. That gives them a five year window to try to snatch it back based on 38 CFR 3.344. 

Relax and let justice take it's tortured course. Just smile and know you've already won. The money is accruing without interest at the VA bank but at least it's accruing. 

[Gastone]

Meanwhile, get the PTSD checked out. If your still drinking, take a Uber.

Semper Fi

[jfrei]

I have last year and they said it was depression disorder with anxiety but it wasn't related to my deployment but due to other circumstances, (my accident) Willful misconduct.