Appeal 50% Dro Rating Or Apply For Increase In Rating?

[tssnave]

After a long, 3 year process and one really cruddy C&P exam, I have been granted 50% sc disability for mental illness through the DRO process. The check has arrived (and been cashed) and I’m in the process of sending in the other paperwork (marriage license which I sent with my original claim, insurance, trying to figure out how to set up direct deposit – again, this info went in with the original packet but I’ll spare you that rant and try to stay on topic).

However, after reading the rating decision and talking with my DAV rep I see very clearly that I fall in the 70% rating. Even though there were notes from a couple of the 70% factors, most of what was in the C&P report fell out at 50%. My GAF was 49 (which I read somewhere, maybe on this board, that a 49 GAF would correlate to 70% but apparently the VA can use the GAF as they see fit).

I believe I got 50% because I was so depressed during the C&P exam that I couldn’t think straight, didn’t answer the questions fully, and didn’t expound on closed ended questions that I should have (who knew?) so the 50% rating is in part the fault of my sc disability (what a round robin this whole system is).

The other side of that coin is that there were several areas of the rating that weren’t even addressed in the C&P exam. How can they evaluate me on that which they do not ask?!? Since I am uninsured and have only been going to my civilian primary care doc, I don’t have treatment notes and they won’t accept the ones from several years ago when I was seeing a shrink when I had insurance.

So, I didn’t perform well on the C&P exam and the C&P exam didn’t cover all of the topics used to rate mental illness and I wound up at 50% instead of 70% where my symptoms fall out.

My DAV rep has advised me to go to a shrink and talk it all out. Tell him everything that goes on with my sc mental illness and get clinical notes to give to the VA. I have that appointment set up next week. The shrink said we’d talk for 2-3 hours (much longer than the half hour C&P exam), he’d talk to my spouse for symptoms I am not clued into, and he’d write up clinical notes, though he won’t make any disability determination. That along with my most recent clinical notes from my visit to my primary doc should, according to the DAV rep, be enough to get the VA to reopen my claim and hopefully go to 70%.

I have a couple of questions about this route:

1. In my situation, is it better to appeal the 50% and provide additional independent clinical notes to show them I am really at 70% or is it better to take the 50% and try to get an increase to 70%? Please tell me why you believe either choice is best. If there’s not a clear best way to go on this please list the pros and cons of both routes (appeal the 50% vs go for an increase).

2. If I go for an increase can they back date it to the original date of the 50% rating? Does the VA recognize just how hard it is to work your psych claim when you’re a psych patient??!!??

3. If you go for an appeal do you have to go through another C&P exam or will the clinical notes suffice?

4. If you go for an increase do you have to go through another C&P exam or will the clinical notes suffice?

5. If I do have to do another C&P exam will they still consider the clinical notes from the independent shrink?

Thanks in advance for the replies.

ts

Edited March 15, 2007 by tssnave

[tssnave]

Vike 17 – I didn’t realize I could request a “reconsideration” of my claim. That would be a great solution after my private shrink writes up the clinical notes.

You stated the claim goes back to the rating activity instead of the Appeals Team. Does “rating activity” mean it would go back to the DRO since that is where it was decided or would it go back to the regular rating folks?

Those bozos (regular raters) denied my claim based on there being no evidence in my National Guard records of a mental disorder despite my never having claimed to have been seen in the National Guard for my disorder. Plus, I sent in letters from the treating docs from the mental health clinic I went to while I was on active duty.

I trust the DRO a lot more than I do the regular raters who don’t know the NG from the active Army and seem unable to match up dates of treatment with dates of service between active duty and NG records.

Please, make my day and tell me that if I request the VA to reconsider my rating based on new evidence (the new clinical notes) that it will go back to the DRO. Otherwise, if it goes back to the regular raters I don’t figure I stand a chance. Did I mention that the regular raters, on two separate occasions, requested information that I’d already sent them? I don’t trust those guys. They do very little due diligence, IMO, and can’t read what they have in front of them in the first place. They are the whole reason the DRO exists.

You are correct about my not sending in a VA Form 9. I was initially denied, DAV sent in a NOD and we elected DRO and after the DRO verified that my military shrinks who gave me letters in support of my claim really served at the mental health clinic when they say they did, they set me up with a C&P exam and rated me 50%.

Now, if I assume that if I send in my new clinical notes and a request for reconsideration if they don’t make a decision within a year I could still put in a NOD – correct? Please verify.

Plus, based on what another poster wrote on this or another thread, I could send in my VA Form 21-8940 with my reconsideration request – correct? Please verify.

Please read my reply to Berta and offer your opinion on whether or not to send in my SS statement with the Form 21-8940 for IU.

Thanks in advance for the answers to these questions and for the information about requesting reconsideration. That sounds like the best way to go, especially if the DRO would be the one to reconsider the new evidence.

I appreciate the help, especially in light of your pc problems.

Thanks,

ts

Vike 17 wrote:

One other thing to keep in mind is if you send in "new" evidence (evidence which VA was unaware of at the time of their previous rating decision) within the one year appeals period, you can have the VA "reconsider" their previous decision without having to go through the appeal process. If you do this and the claim is granted (in your case an increase to 70%), generally, the effective date would also go back to the original date of the claim. Furthermore, a request for "reconsideration" normally goes faster thatn an appeal because the claim goes back to the rating activity instaed of the Appeals Team and is worked according the orginal effective date.

If you decide to flat out appeal the decision, you must file a NOD within one year of the rating decision. You would want to file a NOD if you just plain disagree with the VA's decsion based on the current evidence of record. Havng said that though, you can also submit "new" evidence along with your NOD.

[john999]

Tssnave

Did you have a personal hearing with the DRO or a Review? I was denied SC by a De Novo Review I had after I sent in my NOD. I then asked for a personal hearing and I got one with a DRO. I then got service connection. Ask for a Personal Hearing so you can talk to a human being about your new evidence. If you can get to a live human being and present you claim it is better than waiting for the VA to look at paperwork with just a claim number attatched. It seems to me that nothing much happens until you send in a Form 9. You can ask for a hearing with a DRO via the Form 9, and still have appeal rights to the BVA. I know because I did it.

[tssnave]

John,

I did not have a personal hearing with the DRO. I am not sure what you mean by a review. If you mean did the DRO do a review of my claim then yes, I had a review. If "review" means something different in VA-speak then I don't know. After my claim was initially denied the DAV filed an NOD and we elected the DRO process to keep it at the local level. The DRO rated me 50% sc after my C&P exam and verifying that the Army docs who sent in letters were really who they said they were and stationed where they said they were stationed.

I have never gotten a Form 9 or a Statement of Case (which is what I think a Form 9 is, if that's wrong, please let me know).

My current plan (which I haven't run past my DAV rep) based on my understanding of the replies to this thread is to submit additional clinical notes and a Form 21-8940 and request that the DRO reconsider my rating based on new evidence.

Trust me, a personal hearing in my case is not a good plan. I fall apart under pressure (and talking to someone in person I don't know about my sc disability is very stressful), can't concentrate, can't form a coherent thought much less sentence. I look and sound like an idiot. Part of the reason my C&P exam remarks are as shallow as they are is because I was unable to get my thoughts together and explain how my sc disability affects the various aspects of my life that they rate you on. "Patient has concentrational difficulties" was an understatement! I am better on paper where I have a chance to read, review, and edit what I write over the course of several days or weeks. Me in person is nowhere near as coherent as me on paper.

I've said it before and at the risk of boring others, or worse, being accused of whinning, the paradox of mounting a VA claim for mental illness is that you are the person who has to explain your sc disability to the VA but because of your sc disability you are not well equipped to do so. That's why I'm going to a shrink I pay by the hour to listen to me - so I can get it all out and not try to compress a lifetime (25 years) of mental illness symptoms into a 30 minute C&P conversation.

Thanks for your replies,

ts

Edited March 17, 2007 by tssnave

[sixthscents]

"Further and finally if you do file an appeal, the new rater can always decide the old rater gave you too high of a rating... and reduce it. Now this is highly unusual, and I haven't seen it happen, but it can."

yet another instance where I thought I knew something, but didn't. I was aware of the CUE, but I thought that raters could decrease ratings based upon "improvement", and had heard where they had..especially in PTSD cases... I wasn't actually adressing the CUE though, so I wont use it as a defense, if I was wrong, I was wrong... I was just quoting what I had heard, instead of quoting what I had verified. MY bad...

[sixthscents]

OK, I think we are having a bit of a disconnect here, so lets make sure we all understand some of this...

An veteran files a claim. That claim is the rated, by a rating officer (RO) and a written decision is sent to the veteran.

The veteran disagrees with the decision: at this point they can go two routes.. formal also known as (traditional) or informal (non-traditional) appeals.

If the veteran elects a non-traditional appeal they send in a notice of disagreement (NOD) (basically the what and why you are disagreeing and supporting evidence)... opinions differ as to what is a good or bad NOD, but I'm not going to address that... just the process...

The claim then goes to another rater (not the same one), and is called a DRO, or Decision Review Officer... and that rater either issues a new rating decision, or if not they issue a statement of case... (SOC)

Now the veteran can elect to appeal this decison.. again thru both traditional and non-traditional avenues...

If a veteran electes to file a traditional appeal they file a VA Form 9....

The appeal then goes to the BVA (I THINK... like I said Im shakey on the formal appeals process)

The BVA issues a decision, and either substantiates the appeal and REMANDS it back to the local RO for reconsideration, or futher development i.e. a new C&P etc...

or they uphold the raters decison, and do not order a remand.

At this point the veteran can:

A: Forget the whole mess and have a nice cup of tea

or file an appeal with the VACA (AGAIN I THINK... I am shakey on formal appeals, I just think the NOD at the local Veteran Affairs Regional Office (VARO) makes more sense and has always (except twice.. so far) rendered in the end what I thought was the right answer or rating, or shown how what I thought was wrong... and that happens too)

VACA considers teh claim and either supports the decison, supports the veteran, makes a new decison, or vacates a decison based upon a clear and unmistakable error (CUE), or can again remand it back to the local VARO............

Now... help me ya'll this is the process in brief correct.. I know i left out SSOC and stuff but have I got the whole appeals pretty much here?

I really need that nice cup of tea now... you see why I stay with NOD's?

Oh and a claim is perfected when a SOC is issued... right

I KNOW I have chewed this up, so help me out here Vike and make sure I havent totally screwed this up.... I'm solid on NOD's, I just dont have the depth of experience (or the burning urge to read M21-1 and CFR 38 in depth on formal appeals... but I guess I'm gonna have too)

hopefully this and the corrections to my errors will help you uinderstand the path your claim can take.

there are differing opinions on the effectiveness of NOD's vs. BVA, or VACA... I am definatly in the NOD camp and can show you MY format for ever NOD I do, since I use the same format always (otherwise I could leave something out, or miss something)

Anyway there you go... prolly too long, Im a verbose kinda guy.

[sixthscents]

Oh, and tssnave I generally do NOT reccomend a face-to-face. If I can say it face-to-face why cant I present the evidence clearly in a NOD and save all the time. Now, in some cases, for some reason, the rater simply does not agree and then a face-to-face may be justified if only to help the veteran understand WHY the rater made the decison they did, or it (and this is what I have heard, but not experienced) shows the VA where they are making their mistake in dismissing some significant piece of evidence etc.