Dro/bva Hearing

[Ricky]

I am preparing for my upcoming DRO hearing which I know will be followed by a BVA hearing. This is my opening argument for both. Any ideal or suggestions will be appreciated. Hopefully it will not be to harsh cause it only speaks of the truth and facts:

I am here today to blah, blah, blah...... and to present additional evidence and arguments in support of my appeal.

First I must bring up the fact that the rating decisions and SOC involved in this case are inadaquate. Title 38 US Code, Section ______, 38 CFR, Part _____ Section ______ and M21-R (I am looking for the numbers for these, I know they exist but don't have them on hand), provide in part that decisions issued by the VA must contain a Reason and Basis containing enough information and written in a language that such will allow a normal veteran to understand the reasons for the denial and allow him to properly to prepare an appeal to the denial. This has not been done in this claim. Neither the rating decision nor the SOC contained a properly prepared Reason and Basis. Neither contained any language that would explain to the veteran (me) why the evidence of record prepared by treating generalized and specialized physicans did not support the claimed disabilities; nor did either provide a conclusive or definite reason for the denial. Both contained generalized one sentence denials that was not supported by any evidence to support such an action. Therefore, this appeal has been processed by the veteran without a true knowledge of the reasons for denial and I would ask that as part of this hearing the VA provide me with such information.

The above will be used in both hearings. The following will be used only in the BVA hearing:

You will notice that in the submission of the perfected appeal, I provided several reasons for the appeal of each disability claimed. In my request of actions to be taken by the board you will notice that I asked for a specific rating percentage and that the board ajudicate the claim without remand to the RO. The reason I have requested this specific action to be taken is that any further action requested of the RO for this appeal will simply result in additional wasted time and money for the VA, the veteran and the U.S. taxpayers. The RO has shown by its past actions in this appeal its desire to continue to be apathetic in the processing of this claim. Their actions have spoken loud and clear as to their attitude towards this claim. As an example I provide: As you can see from the written correspondence provided to me by the RO, normal processing time for a NOD at this RO is 14-18 months depending on the complexity of the claim. It is assumed that this means a claim containing 1-4 issues would be processed within the 14 month timeframe and a more complex claim would require additional attention, therefore requiring the additional 4 months to process. As you review my claim you will discover that it contains 10 seperate issues, two of which center around neurological problems that stem from a disease that is not well understood by the medical community. However, the NOD on this claim was received in the mailroom at the RO in late August 2005. The RO issued a SOC denying all claimed disabilities in late January 2006. IT ONLY TOOK 5 MONTHS FROM MAILING TO RECEIPT OF THE SOC. 5 Months to process a 10 issue, medically complex appeal. That is amazing. Blah, Blah, Blah -

I will add more as I go along. I am not trying to be a smart a--- by doing this, I just feel that the board needs to realize that the actions of the RO were defecient and leads the veteran to believe it was due to simple apathy on their pare. Plus it is fact and not just some fiction I made. I still laugh every time I look at the SOC. It is a carbon copy of the rating decision and both do not provide any explanation as to why none of the evidence was considered probative etc........

[Josephine]

I am preparing for my upcoming DRO hearing which I know will be followed by a BVA hearing. This is my opening argument for both. Any ideal or suggestions will be appreciated. Hopefully it will not be to harsh cause it only speaks of the truth and facts:

I am here today to blah, blah, blah...... and to present additional evidence and arguments in support of my appeal.

First I must bring up the fact that the rating decisions and SOC involved in this case are inadaquate. Title 38 US Code, Section ______, 38 CFR, Part _____ Section ______ and M21-R (I am looking for the numbers for these, I know they exist but don't have them on hand), provide in part that decisions issued by the VA must contain a Reason and Basis containing enough information and written in a language that such will allow a normal veteran to understand the reasons for the denial and allow him to properly to prepare an appeal to the denial. This has not been done in this claim. Neither the rating decision nor the SOC contained a properly prepared Reason and Basis. Neither contained any language that would explain to the veteran (me) why the evidence of record prepared by treating generalized and specialized physicans did not support the claimed disabilities; nor did either provide a conclusive or definite reason for the denial. Both contained generalized one sentence denials that was not supported by any evidence to support such an action. Therefore, this appeal has been processed by the veteran without a true knowledge of the reasons for denial and I would ask that as part of this hearing the VA provide me with such information.

The above will be used in both hearings. The following will be used only in the BVA hearing:

You will notice that in the submission of the perfected appeal, I provided several reasons for the appeal of each disability claimed. In my request of actions to be taken by the board you will notice that I asked for a specific rating percentage and that the board ajudicate the claim without remand to the RO. The reason I have requested this specific action to be taken is that any further action requested of the RO for this appeal will simply result in additional wasted time and money for the VA, the veteran and the U.S. taxpayers. The RO has shown by its past actions in this appeal its desire to continue to be apathetic in the processing of this claim. Their actions have spoken loud and clear as to their attitude towards this claim. As an example I provide: As you can see from the written correspondence provided to me by the RO, normal processing time for a NOD at this RO is 14-18 months depending on the complexity of the claim. It is assumed that this means a claim containing 1-4 issues would be processed within the 14 month timeframe and a more complex claim would require additional attention, therefore requiring the additional 4 months to process. As you review my claim you will discover that it contains 10 seperate issues, two of which center around neurological problems that stem from a disease that is not well understood by the medical community. However, the NOD on this claim was received in the mailroom at the RO in late August 2005. The RO issued a SOC denying all claimed disabilities in late January 2006. IT ONLY TOOK 5 MONTHS FROM MAILING TO RECEIPT OF THE SOC. 5 Months to process a 10 issue, medically complex appeal. That is amazing. Blah, Blah, Blah -

I will add more as I go along. I am not trying to be a smart a--- by doing this, I just feel that the board needs to realize that the actions of the RO were defecient and leads the veteran to believe it was due to simple apathy on their pare. Plus it is fact and not just some fiction I made. I still laugh every time I look at the SOC. It is a carbon copy of the rating decision and both do not provide any explanation as to why none of the evidence was considered probative etc........

Ricky,

Sounds good so far!

Josephine

[Berta]

Ricky-I would focus on the first hearing only - if I were you-

"Neither the rating decision nor the SOC contained a properly prepared Reason and Basis. Neither contained any language that would explain to the veteran (me) why the evidence of record prepared by treating generalized and specialized physicans did not support the claimed disabilities; nor did either provide a conclusive or definite reason for the denial. Both contained generalized one sentence denials that was not supported by any evidence to support such an action."

Good opening- and you can support this for the record with the citations-

especially 38 CFR 4.6 for this part:

VA did "not provide any explanation as to why none of the evidence was considered probative etc"

I would keep it short and keep the DRO on track by having this all typed double space in front of you (and the DRO too)

If they did not send you a real VCAA letter-definitely state that too-as that would set up a needless time consuming remand if you had not received this proper letter advising what you specifically needed to send them.

Also I would state to them for the record, each piece of evidence you sent and how they failed to consider it properly- or if they simply ignored it why did they ignore it?

Ask the DRO for the specific medical rationale behind the denial -if that too was lacking in the SOC.

I would rehearse this all to time your statement-

lets face it most people cannot handle too much oral info at one time- so this is also stated in the written brief that the DRO can have copy of.

Your confidence shows in what you put here- this is GREAT! It is a psychological factor that cannot be missed by a DRO.

Legal citations and VA case laws are FACT and along with the medical evidence-the DRO has to respond -

probably nothing will happen the actual day of the hearing-

but one never knows.

I posted the DRO job description here before -here it is again-

it might also help you to know what to expect.

Dont hesitate to access M21-1 too and bring a print out of anything there that can help-

even bring the DRO job description-if you wish-

There are things that make good claims succeed-

The most important one is Medical evidence and of course the established proven Nexus-

in addition to that- VA regs themselves can help considerably and even M21-1 -

My present claims not only have the medical evidence but I have sent them the regs they need to follow from 38 CFR as well as parts from M21 -1 that show them how to follow those regs.

These are just people- not anyone to be intimidated by-

or to be angry with- and are bound by documented medical evidence in order to make a decision.

Put your statement into a manila folder -with copy for the DRO-and mark it with a Tab identifying it- do this for each separate piece of specific evidence-and then have a folder for the specific regs-and dont forget the actual SOC you are presenting argument on-marked in a separate folder-this way you can whip out what you need quickly-

Stand up when you make the statement unless the DRO tells you to sit down-

the psychological factor there-

and if the DRO gets off track- it can happen-bring them back into focus on the SOC and how it was deficient.

When the day comes-as you travel there- concentrate on what you can do AFTER it is over-

plan to go get a steak dinner or catch a good movie or just tell the family to give you some down time -take a nap--or call up some friends you havent talked to in a while-

plan to reward yourself for the effort you are making in this hearing-

And guess what- these DROs are probably more apprehensive of these hearings than any vet is and I am sure they will show you respect and listen tentatively.

Bring someone if you can- would be nice if your vet rep goes too but some of these vet reps at a hearing can make matters worse-

you know your claim better then they do.

DRO_Important_job_description.doc

[Guest fla_viking]

Dear Ricky

Telling the RO they cant just say because we told you so is a big waste of time. IF you know your going up to BVA anyways, and I think by the screw you type ruling you got is a good indicaton your right. Why waste 2 years at the DRO level just to have to go up to BVA anyways?

The Veterans should give the RO only once chance to explain there ruling. Every thing else is just sucker bait by the RO to get the vet to come back and back wasteing years doing so.

Terry Higgins

[john999]

Ricky

Do you have any more new evidence to tip the balance at the DRO Hearing? That would be a good time to submit it. You want to get their firstest with the mostest. My DRO Hearing was pretty quick and the DRO just asked a few short questions. I knew from the VSO what the outcome was going to be before I left for the day but then it took 60 days or so to get the official decision. I had a VSO and I think it helped in getting my SC rating for my upper extremity peripheral neuropathy. It was horse tradning. I drop the further appeals now and get the SC. If my PN gets worse I will be right back there asking for a higher rating. The VA fought me on SC for the PN on the first go round and then I guess the DRO SC'ed it on the exact same evidence. I asked for the benefit of the doubt. They could have SC'ed me off the bat but you know they figure you might not appeal so why not deny it? My wife went with me and gave evidence.

[sixthscents]

OK Terry,

Im gonna jump in cause youve been spouting the SAME line day in day out.... look I handle a bunch of claims and MOST of them get resolved at the DRO level. Just because YOUR experience was one way, does NOT mean that it will be the same for another. The simple fact is that if a claim is weel documented, well thought out- well service connected... the DRO NORMALLY does just fine, in less than 2 years.

NOW, I am not a cheerleader for the VA, BUT... while the DRO's do make mistakes, even considering the NOD's etc. A NORMAL claim takes 12-18 months to clear the hurdles. Now there are tenuous claims, or claims that are very complicated that take more, but I am really getting tired of you howling that the CAVC level is right and proper, when all you and ones like you are doing is FURTHER congesting the already tremendous caseload at CAVC.

It simple..

1. Clear and established service connection

2. Clear and established diagnosis of illness or injury

3. Proper presentment of claim...

If these simple steps are taken, NORMALLY, the DRO's get it mostly right. Oh sure in complicated cases they screw up, and occassionally they just screw up period, but suggesting that a claim going to CAVC is more probable for success is... shakey at best. Show me some statistics that say claims handled by the DRO, then forewarded to the CAVC actually increase in likelyhood of success and I might be willing to listen, not accept, but listen to the same old, same old from you... but you dont have these statistics simply because they dont exist. I've looked for them. What evidence does exist supports my contention much more than yours.

Its clear to me that MOST claims can and are settled at the DRO level, maybe thru a series of NOD's maybe not, but... I have heard you advise again and again NOT to even consider the DRO approach, and thats EXACTLY why there is such a backlog of cases at the appeals court. Again and again I have seen cases at the appeals court simply dismissed for simple errors that any DRO would have caught just as easily, and probably - IN MY EXPERIENCE - more quickly.

Its simple - follow step 1-3 - and THEN NOD the conclusion, or if you think a GROSS violation has occured then CAVC, otherwise there is simply no need, and all you are doing is adding to the problem.

[sixthscents]

Berta,

I couldnt have said it better, and probably would have done worse.... good job.