NOD and DRO process

[Joe1766]

I recently received a rating on several disabilities 4 of which I have submitted as part of the NOD/DRO process.  When they review the claim does the DRO confine himself/herself to the issues that are listed on the NOD (4 items in question) or is it a de novo review of all the disabilities originally submitted?  I know that the DRO can downgrade a rating(s) as well which is concerning.......what is the risk/benefit analysis when it comes to submitting an appeal?

Edited July 10, 2016 by Joe1766

[broncovet]

Your VSO did not do you any favors delaying the decision whether or not you want a hearing.  The VA wont move forward until /unless you move forward.   The longer it takes for you to decide, the longer your claim takes.  

Im not sure what you are talking about as far as "risk", but I have posted elsewhere explaing that you should seek all the benefits to which you feel you deserve, and this includes appeals.  If you dispute other issues, then file a nod on those also, if you are still within a year.  

Mostly DRO reviews result in a SOC, unless you have new evidence.  The VA does not want to permit you to keep appealing until you find a veteran friendly adjuticator.  In other words, DRO's rarely go against the original decision unless there is new evidence or an obvious error.  To win benefits, you will likely need to go to the BVA or beyond, like most Vets.  In practice, they are usually nice to the Vets at the hearing, listening to what you say, then comes the  denial letter. BVA decisions take about 4 years, but that number is growing.  

there has been a push to get claims done, and this means en masse denials.  It also means there is a huge appeal backlog.  

I got a decision in 2009, appealed which went to the board in 2012.  The 2012 decision was a board remand, which was denied in 2015 by the ro again.  I appealed again, and, since  I still have a 2009 docket number, I got a bva decision in 2016.  The bva denied everything, and I hired an attorney and am currently at the cavc.  

Get ready for a long fight.  Alex won his 20 year old claim last year, finally.   And, it took him 5 years for an ILP, and he still had to file a writ of mandamus as the va would not do it even when ordered by a judge.  https://asknod.org/

[Navy4life]

Broncovet;

1 hour ago, broncovet said:

Mostly DRO reviews result in a SOC, unless you have new evidence.  The VA does not want to permit you to keep appealing until you find a veteran friendly adjuticator.  In other words, DRO's rarely go against the original decision unless there is new evidence or an obvious error.

You are right to a point....

In my case the original denial had a medical opinion indicating that I had no medical evidence to support my claim, however, I did!  It was in my SMR's and I had DBQ's, MRI's, etc yet I was denied for my right foot fracture, right ankle, and left toe condition.  I got 10% for my left ankle and that was it!  I had to file an NOD requesting a DRO review hearing, which like you said to the OP, his rep is only slowing him down by not requesting this at the time the NOD was filed.

I went to my DRO hearing and pointed out the mistakes made in the original decision and I provided much more new evidence that I hope will help my case!  I agree that usually the DRO's agree with the original decision and provide an SOC (statement of case) unless there is compelling evidence to over turn the original decision.

To the OP, you will really need to get your evidence in order and make sure you have all you need to win with a DRO.  Good luck!

[rootbeer22]

Joe1766:

I'm also doing a similar thing that you are doing with the NOD process and hearing right  now and asked a similar question to hadit.com membership about risks? As a result, I learned that some of the rules change if you are 55 or older with regard to the exams, ratings  and how they are viewed. Basically, most Vets advised me to just file the NOD anyway  and concentrate on just providing solid additional evidence to support your/our cases better for the second review.  I also have 4 specific contentions that I'm challenging  and have asked for the hearing as well. To my knowledge, I believe that they (the new more senior rater review) would focus on those specific contentions primarily, rather then to look for other issues? I would imagine that these more senior raters are very busy as well as the original raters were and are not really focusing on downgrading folks as a goal? Besides, they all seem to be very thorough and mine actually advised me to get tested for my TBI that was later service connected.   I've heard depending upon the Regional Office in question and their NOD Backlog  that your/our cases may take up to two years to get a review and a hearing anyway--so you're almost there? But if nothing else for me, I'm learning to be much more  patient with the disability processes these days.  I have just added new evidence but have decided to go ahead and spend the money (to my wife's displeasure)  for new IMO/IME Exams to further solidify my case to try to get and upgrade on a couple contentions get SC on one other. Frankly, at this point, it seems like you are doing all of the right moves and hopefully, you'll see an increase? From what I have heard thus far is that if you have good additional or new evidence, present it well and do so with a high degree of confidence, then you should do well? Many vets have attorneys that do this for them which greatly improves their/your chances for success but it comes with a cost at the end. But, little if anything is ever free or without difficulty, especially when you count your time, blood, sweat, and tears to submit a good NOD package that succeeds in the end. Frankly, I really believe these VBA raters and staff are hard workers and care about what they do for us. But a lot of this is very complex and subjective and we are going to have disagreements with them  that result in NODs and appeals anyway. Unfortunately, I had to file my own NOD recently without the benefit of looking at my C-file that I was very proactive and actually ordered long ago and still have not received as of yet?

So hang in there, and I hope you are pleasantly surprised in the near future and receive the claims outcome you want? Please let me know how it all turns out in the future?

Godspeed Rootbeer22

 

[Joe1766]

Broncovet,

The VSO rep did not place any statement in the NOD regarding a hearing.  I am getting the feeling he is relatively inexperienced or not that sharp.  I will speak with him and see how to correct the hearing request oversight.  I understand about the DRO more often than not supporting the RO but, as with Navy4life, the medical information in both my service record and the C&P exam were flatly ignored.  For example I state I had hemorrhoids and at the C&P exam on the 13th of June the examiner in fact found small to moderate hemorrhoids but the rating came back NSC????? Even if they only wanted to rate at 0% it should have been service connected.  I have service records with this condition described and I am still within one year after leaving service (retirement with a total of 34 years of active service)....so at very least hemorrhoids are Service Connected.  Same thing with Chronic sinusitis, hypertension, and Vertigo.......The VSO when he read the medical report on the most recent C&P exam did not understand why this evidence was not given the appropriate weight.

[Navy4life]

Joe;

im currently recovering from a hemorroidectomy and an anal fisher repair. I should have been S/C for them as well but never applied. They are the worst and this is my second surgery to help me with the pain. I wouldn't wish this on my worst enemy. I sure hope this second surgery works. I'm so miserable. 

To add on to this discussion. I would tell your rep to make sure to request that you have the hearing!  It's imperative for you to have the opportunity to plead your case. My hearing which was non formal was the best decision I ever made!  If I don't win from this hearing I don't know what to do!  

[Joe1766]

rootbeer22,

Thank you for the detailed and informative post.  I think individually we all have some of the facts but collectively we are much stronger.  I hope you are right about limiting the focus to the areas that are being challenged but with large organizations like the VA it's hard to know what your dealing with.  As you stated and I agree the majority of the VA employees are trying to do the right thing but as you also know there are always some bad actors out there.  I read several posts by a former DRO with many years of experience and he stated that he rarely found issue with the RO and did find CUE in a fair number of cases that he was forced to resolve against the veteran.  This DRO stated "For example, a common error that inexperienced Rating specialists make is to assign separate evaluations for conditions that cannot legally be evaluated separately.  An experienced DRO will see this and will have no choice but to correct the error.  Sometimes one doesn't want a more experienced person looking at their rating, although they usually don't know this until it's too late.  Otherwise, actual errors in the Rating Decisions aren't nearly as prevalent as most folks think"...........