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*Bergie*

Can you no longer request a DRO Hearing

Question

So it's been a long time since I've done claims and now that the VA no longer accepts a 21-4138 as sufficient to file a NOD, I see that the only option is "traditional" or "DRO review." I find this to be a convenient way to deny a face to face hearing, but wanted to ask if there is a way to request a DRO hearing. I prefer to, and have never lost a case when argued at DRO hearing.

Thank you,

Bergie 

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Bergie:  

EXCELLENT Point, along with excellent Observation.  I was unaware the new NOD forms do not have a space for a "hearing".  I seem to recall the old form had a "hearing" option on the form, but that has apparently been done away with.  

No, hearings have "not" been done away with..the Veteran still has a right to a hearing, per 38 CFR 3.103, posted below.  

You have to understand what is going on here.  The VA has review teams which review these forms carefully  before changing them.  And, it certainly would appear that VA IS trying to do away with our right to a hearing, by not bothering to tell us we have that right.  

It reminds me of the DBQ's.  No where on this list is there: 

"Is the Veterans disability at least as likely as not related to military service? "   Check yes or no.  

This is a not so subtle way of having the Veterans claim fail.  If the doctor does NOT say the condition is at least as likely as not due to service, then the claim is denied having no nexus.  

So, they dont want to remind the doctor, or the Veteran, that they need to include this super important statement.  That would mean more claims are approved.  Instead, lets hope the Veteran forgets that he must have a nexus (many, many Vets persue claims absent a nexus statement), and forgets he has a right to a hearing.  

Again, Excellent Observation and excellent Post, BERGIE.  

Quote

38 CFR 3.103 - Procedural due process and appellate rights.

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§ 3.103 Procedural due process and appellate rights.

(a)Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b)The right to notice -

(1)General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such noticeshall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2)Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3)Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

(Authority: 38 U.S.C. 501(a))

(4)Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

(c)The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in § 20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans' Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician's observations will be read into the record.

(Authority: 38 U.S.C. 501)

https://www.law.cornell.edu/cfr/text/38/3.103

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Bergie,

     Essentially what they said but also you can find the whole VA appeals process metric states, under m21-1, Part 1 Chapter 5:

1.5.A.2.a   The appellant may elect to have a formal hearing at any time during the appeals process.

Link: http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/article/554400000014081/M21-1-Part-I-Chapter-5-Section-A-General-Information-on-Appeals

Also under VA 21-0958 (which is what they require now I think) there still is a section for a DRO review or "traditional" process. I think the last update to this form was September of 2015, or that is the latest I can find anyhow.

Link:  https://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf

Hope this is of some use.

Best of luck,

Six

 

 

 

Edited by sixthscents
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Hi Bronco, Hi Sixthscents,

Thank you so much for the very thorough and detailed answers, I can't thank you both enough...I am working on a NOD claim for my best friend and brother (same person), a man I admire and have strived to be like all my life. So, getting him to allow me to help him is my honor to him...That said, it really is disappointing that the VA still has not done a thing to "fix" itself...I am gonna use the info y'all provided to destroy the DRO that has the misfortune of hearing my brothers case, as there have been several procedural already perpetrated for this single claim that it's time to embarrass them again...

Again, thank you both,

Bergie 

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