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Steps In The Claims Process Questions?


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#1 retiredat44

 
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Posted 26 September 2010 - 06:18 AM

Steps in the claims process questions?

Is thyere a chart somewhere with the steps?

I am curious..
there is the claim, then if denied, there is the NOD, if denied, there is a hearing..

but in between the NOD and hearing there is a DRO (review)?

Who does the review, and does anyone ask you questions? or is it still a one way process where the process just pushes you around with no ability to interact and talk to anyone asking questions or caliry anything?

How does the DRO work and when?

I have a couple questions and statements that could clear a couple things up, and one would think the VA would welcome clarity and understanding and not make things worse with this unfair process..

ok, a little update:
I read this:

"The VA’s highest appellate body is the Board of Veterans’ Appeals, (BVA) located in Washington, D.C. If you do not request a DRO review in your Notice Of Disagreement, the VA will send you and your representative, if any, a letter that acknowledges receipt of your NOD and asks whether you desire a DRO review or would rather have your appeal forwarded to the BVA for consideration. "

So Does This Mean That:
They will ask me if I would like to do a DRO, and ask questions/make statements before the hearing?

Wil I then be able to ask why they only look at part of the evidence, and expalin to them the part they totally ignored?

thanx,
I appreciate this,,

I am stil totally baflled why they overlooked or purposley never addressed al the evidence. I am desperately wanting ot ask them why they ignored it.. I find it criminal for them to have done such an outrageous mistake.. and am dying ot find out how such a blunder was not corrected..

Edited by retiredat44, 26 September 2010 - 06:43 AM.


#2 carlie

 
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Posted 26 September 2010 - 12:24 PM

This should explain things quite well, authored by Vike17.


http://www.hadit.com...help_guide.html


Veterans Claims Self Help Guide<br style="font-size: 10px; ">By Vike17

I have compiled this guide to help veterans understand the VA a little more on how, why, and what is needed to ultimately succeed with their compensation claims. I have also compiled this guide after years of experience in helping other veterans obtain their deserved benefits.

To establish service-connection:<br style="font-size: 10px; ">There are two types of service-connection 1) Direct and 2) Presumptive

There are three requirements to establish Direct service-connection for residuals of injuries and diseases;

1) In-service documentation of an injury or disease.<br style="font-size: 10px; ">2) A current condition with a medical diagnosis.<br style="font-size: 10px; ">3) and a medical nexus connecting 1 and 2.

An in-service injury/disease means that for the most part it must be documented in the veteran’s service medical records (SMR’s). One thing to keep in mind is that, generally, the in-service injury/disease must be shown to be “chronic” while in-service. If it is not shown to be a “chronic” condition while in-service, then you’ll more than likely need an Independent Medical Opinion (IMO) to substantiate the claim. If a veteran doesn’t have either a documented “chronic” condition, or an IMO, the VA will more than likely state that the claimed condition is “Acute and Transitory,” meaning that the injury/disease resolved itself and there is no residuals.<br style="font-size: 10px; ">A current condition with a medical diagnosis means that the claimed condition has to show current residuals from that in-service-injury, and it must have a current diagnosis from a physician.. A lot of times the diagnosis can and will be obtained from the VA C&P exam. If the VA sees that your condition was “chronic” while in the service, or that you have medical documentation of continuity of treatment since discharge, more often than not they will schedule the veteran for a C&P exam to obtain the needed diagnosis and current disabling affects of the claimed disability.

Something connecting the two means either continuity of treatment of the claimed disability from time of discharge to the present, or, if this is not the case, then an IMO will be needed from a physician. A lot of times an IMO is a critical part of the veterans claim. An IMO can sway the benefit of the doubt in the veteran’s favor if the claim is borderline, or it can flat out prove service-connection when one of the three components of establishing service-connection aren’t met! For example, by borderline I mean let’s say that a veteran was seen for lower back pain once while on active duty over a period of a five year enlistment. And now it is ten years since his discharge and the veteran hasn’t been seen for the lower back until recently, or only had one episode of back pain within those ten years since getting out of the military. The veteran will need an IMO stating something to the affect that his current lower back condition is some how related to the episode while on active duty. If the RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is very liberal in applying the regulation, he/she may award service-connection without the IMO. However, if the RVSR is “by the book,” then he/she may deny service-connection in the absence of a good IMO. An example of where an IMO can establish service-connection with which one or more of the three criteria listed above are absent would be, let’s say that a veteran was seen one time for a knee condition while on active duty and this incident is noted in his SMR’s. Ten years later the veteran is experiencing pain in that same knee but didn’t have any type of treatment since his discharge, he would need a really good IMO to establish that his current disability is somehow related to the in-service episode.

As far as presumptive service-connection is concerned, a veteran needs to be able to show that a condition listed in §3.307, §3.308, and §3.309 has manifested itself within the prescribed time limits after separation from the service. A presumptive condition does not need to be noted in a veteran’s SMR’s, hence presumptive, or it’s presumed that the said disability/disease occurred while in the service. There are some presumptive disabilities that do need to have manifested themselves within the first year after separation and to degree of 10% disabling in order to warrant presumptive service-connection. One common one is Arthritis.

Filing the claim:<br style="font-size: 10px; ">Once you have determined that you have met three basic criteria of disability compensation, you should then file the claim with your local Regional Office. There are two types of claims for initial service-connection; an Informal claim and a Formal claim.

An Informal claim is some type of communication to your local regional office in which you state you intend to apply for disability compensation. This communication can be a written letter, or fax, a telephone call or even an email. The best way, however, is something in writing. When a claimant makes an informal claim with VA, they need to clearly identify the disability for which they intend to apply for, give the VA your SSN and dates and branch of service, and make sure you send it via certified mail with return receipt! After you have sent your informal claim to VA, you have up to one year to send the VA your Formal Claim. In this one year period, I would recommend that you get together all of your medical records and so forth that will support your claim. If you send the VA your formal claim within the one year time period of the informal claim and VA grants your claim, the effective date, or the day you start to receive disability compensation, is the date of your informal claim. This could mean a lot of money in retro!

A Formal Claim for disability compensation is the VA Form 21-526. You should fill this out to the best of your ability. You should attach any Service Medical Records, Private Treatment records relevant to your claimed disability(ies), certified copy of your DD 214, copies of marriage certificates divorce decrees and dependent birth certificates. By attaching these documents, you’ll speed up the processing of your claim quite a bit. However, you do not need to attach those documents if you do not have them in your possession. If you do not have any of those medical records, the VA will assist you in obtaining those by asking you to fill out VA Form 21-4142 for each facility were those records are located. One important side note; make sure you sign the VA Form 21-526!!

Important: You do not need to submit an Informal claim. You can file VA form 21-526 without informing VA of your intention to file for disability compensation.<br style="font-size: 10px; ">

What happens after I file my Formal claim?

What happens after you file your claim:<br style="font-size: 10px; ">After you send VA your Formal claim, there are a number of “teams” at your local regional office that process your application.

There are essentially six "teams" at a Regional office that make up the "process." When a veteran files a claim for benefits with VA, it is received at what is called a 'Triage Team.' This is where the incoming mail is sorted and routed to the different sections or other "teams" to be worked. Picture this as a Triage unit at a Hospital. There they decide who goes where according to the injury/condition involved. This is the way it works at VA too. The main function of the Triage Team is to screen all incoming mail. Within the Triage Team there are other sub components; the Mail Control Point, Mail Processing Point, and to a certain extent supervision of the files activity. The mail control point is staffed with VSR (Veteran Service Representatives) who are actually trained in claims processing. This is also where they receive and answer the IRIS inquiries. The mail processing point is where chapter 29/30 claims (a bit later on theses types of claims) are processed/awarded, and to a certain extent dependency issues are resolved.

The next step is the "Pre-Determination Team." This is where your claim for benefits is sent to be developed, meaning verification of service from the Service Department if a certified copy of the DD 214 is not submitted by the veteran, SMR's are obtained from St. Louis if they weren’t sent in already by the veteran, any CURR verifications are done for PTSD stressors, any private treatment records are obtained under the "Duty to Assist," and inferred issued are identified. Once the Pre-Determination Team figures out what you’re claiming, they’ll send you what’s known as a “Duty to Assist” letter or the VCAA letter. This letter states what type of claim you are filing, what conditions you are claiming, and what the regulations say you must show to have your claim granted. It will also state the evidence needed by VA to support your claim, and what VA is doing or has done. The letter will also explain VA's “Duty to Assist” you in obtaining the evidence to support your claim. There will also be a response form that you should fill out and return. If you do not return this form or mark the box that you have additional evidence to submit, the VA must wait 60 days to further process your claim. As your claim progresses further though the Pre-Determination Team, you may or may not receive other letters. Examples of those letters include: follow-up letters to let you know VA requested something from a third party and there is a delay in their reply, letters requesting that you provide something to VA to support your claim. The Pre-Determination Team may also send you a computer generated letter telling you they are still working on your claim. That letter is pretty interesting because it means a couple of things have happened with your claim; 1) your claim was reviewed by someone recently or 2) your claim has aged where the computer system is telling the regional office that they must look at your claim. One thing to keep in mind is that every time VA sends you a letter, regardless if it’s for information you already sent them, you should always respond with a letter via certified Mail with return receipt. If you already sent something to VA that they previously requested, just send them a letter stating that you already submitted the information and when you sent it. Once all the developmental work has been done on a claim, it is then designated as "Ready to Rate" and sent to the Rating Activity.<br style="font-size: 10px; ">

The Rating Activity or “Rating Board” is where most veterans want to have their claim. This is where the claim for benefits is decided. The RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is the person who rates a veteran's claim. They review the entire C-file to insure it is ready to be rated, and schedule any C&P exams that may be needed if not already done so by the Pre-Determination Team. If a C&P exam is needed they go ahead and do the paperwork to schedule this. Once the RVSR has all the needed paperwork to rate the claim, they make their decision. If the RVSR determines that there is something missing from the claim to make a decision, they send the claim back to the Pre-Determination Team for further development. Once they have reached their determination, they produce a rating decision with their decision and forward the C-file to the Post-Determination Team.

The Post-Determination Team is where the rating decision is promulgated. In other words, it is where the decision gets entered into the system and the rating decision is prepared and sent out to the veteran. If the veteran has a Power of Attorney (POA), they give a heads up to them as to what the decision was. If a claim has been granted and the retro involves over $25,000.00, it is sent to the VSCM (Veterans Service Center Manager) or their assistant for a third signature. The Post Determination Team may also do the following actions; accrued benefits claims not requiring a rating, apportionment decisions, competency issues not requiring a rating, original pension claims not requiring a rating, dependency issues, burials, death pension, and specially adapted housing and initial CHAMPVA eligibility determinations when a pertinent rating is already of record.

The Appeals Team handles appeals in which the veteran has elected the DRO review. They also handle any remands that have been sent back from the BVA and the Court. The Appeal Team is a self containing unit within the Regional office. They make determinations on appeals, make rating decisions that are on appeal, do any developmental work on any issue that may be on appeal, and issue any SOC's and SSOC's in conjunction with their review.

The Public Contact Team’s primary functions are to conduct personal interviews with, and answer telephone calls from veterans and beneficiaries seeking information regarding benefits and claims. In some regional offices, depending on their workload, also handles IRIS inquiries and fiduciary issues.

As one can see the VA claims process can be complex. In essence a veteran’s claim is continuously going from one team to another until it has been decided. This process can be rather lengthy depending on what regional office has jurisdiction over your claim and their pending workload. During this process a veteran may want to find out the status of their claim. This should be done through the VA’s IRIS website inquiry system. Through this inquiry system, the veteran will get much more accurate information than by calling the 1-800 number. The 1-800 will only connect you to the regional offices “Public Contact team.” These employees aren’t really trained to deal with the different processing stages and so forth and aren’t able to give very accurate information in that regard. The intention of the 1-800 number and the Public Contact team is really to give general benefits information and send out forms to claimants, not to try and track a veteran's claim. Furthermore, veterans’ claims aren’t like tracking a UPS package where it travels in a straight line to its end destination. Veterans’ claims will end up bouncing from team to team at the regional office until all of the work required to make a decision is done.

Appealing an issue with VA;<br style="font-size: 10px; ">When you receive your rating decision from the VA, look over it carefully. Make sure all of the evidence you sent them is listed in the ‘evidence” section of the rating decision. In the “Decision” section will be what VA decided. In the “Reasons and Bases” section will be VA’s rational for their decision. If you disagree with VA’s rating decision, you can appeal that decision.

In any type of appeal, the first step is submitting a Notice of Disagreement (NOD) with your regional office telling them what issue you disagree with and why you disagree with that decision made by them. You have one year from the date of the rating decision to submit your NOD. In the NOD you should also specify which way you wanted your appeal handled i.e. the traditional way (Board of Veterans Appeals, or “BVA”), or through a DRO review. If you don't tell the VA which one, they will send you a letter asking which route you want. You then have 60 days from the date of that letter to choose. If you don't answer the letter, the VA automatically processes the appeal through the traditional process. Also in the NOD you should state if you want a hearing or not.

NVLSP suggetsts adding this into the I-9 form- usually there is enough space under the hearing questions on the I-9 form.


"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."


A DRO review is where a Decision Review Officer, hence DRO, who is a senior rater with many years of experience that works in the appeals Team, will completely review your claims folder and NOD and decide whether or not he/she can grant the benefit the claimant is seeking. If the DRO grants the appeal in full, he/she will produce a rating decision telling the claimant of the percentages ect... just like the Rating activity would on a normal claim. If the DRO cannot grant the appeal in full, then he/she will issue a Statement of the Case (SOC) explaining the actual laws and rational which pertain to the denial. Even if the DRO is able to grant a partial appeal, they still must send out a SOC. For example, let's say you are appealing a PTSD rating of 50%. The DRO grants an increase to 70%, but since the DRO didn't/couldn't grant the highest possible award pertaining to the disability, they must still produce a SOC. In this scenario, the DRO would send out a rating decision with the grant in increase from 50% to 70%, and a SOC stating why he/she couldn't grant the full benefit allowable i.e. the 100% rate. Once a claimant receives a SOC, they have 60 days from the date of the SOC to either "perfect' their appeal by submitting VA Form 9, which will prompt the RO to send the appeal to the BVA, or submit 'New" evidence that were not before the decision maker when he/she made their prior determination. When the claimant submits "new" evidence, the VA will evaluate the new evidence and either grant the benefit sought on a appeal or issue a Supplemental Statement of the Case (SSOC) outlining why the new evidence was unable to be used to grant the appeal. A SSOC will only address the new evidence the claimant submitted. From the date of the SSOC the claimant again has 60 days to either "perfect" the appeal by submitting VA Form 9, or again submitting "new" evidence. If the claimant submits new evidence again, then the process of either a grant in benefits sought or a SSOC will repeat itself until the claimant "perfects" their appeal.

The traditional appeals process is where the claimant wants to skip the DRO review and appeal directly to the BVA. In this case, the claimant still must send a NOD to the VA. The VA, more specifically the rating activity that made the prior decision, will send out a SOC. Once the claimant receives the SOC the process afterwards is the same as when the DRO issues a SOC. You either can submit "new" evidence and have the Rating activity reconsider their previous decision, which will either prompt them to grant the benefit sought on appeal or they will send you a SSOC, or you can "perfect" your appeal by sending in VA Form 9. Once the VA Form 9 is sent in, the regional office then prepares your claims folder for the BVA where it gets put on the docket. Remember you only have 60 days from the date of the SOC or SSOC to submit the VA Form 9!

Requesting a "Reconsideration" of a prior decision:

Another route that may be of some interest is the "reconsideration" route. This is where a claimant has received a rating decision and may disagree with that decision, but has "new" evidence that the Rating activity was unaware of at the time of their decision, and may think that the "new" evidence might result in a more favorable decision than the prior one. In this case the claimant has the one year appeals period to send in the "new" evidence and request that the Rating Activity "Reconsider" their previous decision. The claims folder would then go back to the Rating activity to be reconsidered and the RVSR would send out a new rating decision where the "new" evidence is considered and an new decision rendered. One thing to keep in mind is one MUST submit "new" evidence in order for the VA to "reconsider" their previous decision. Another reason one might consider the "reconsideration" approach is simply because a request for reconsideration generally goes faster then an appeal because the claims folder goes back to the RVSR and is worked according to the date of the request for re-consideration. If the request for reconsideration warrants a favorable decision, the effective date may be the date of the original claim, depending what the evidence submitted dictates . A request for reconsideration is simply "re-opening" a claim within the one year appeals period [(see 38 CFR, §3.400(q) for effective dates concerning reconsiderations) also see "Re-opening claims" for an explanation].

Another topic concerning "reconsideration" is whether or not one should file a Notice of Disagreement (NOD) if the VA hasn't yet rendered a decision before the one year appeals period has expired. If one sends in "new" evidence within the one year appeals period and request a "reconsideration" of VA's prior decision, they better be 100% certain it will change VA's prior decision; If VA accepts it as a "Reconsideration" (which as stated before is a "Re-opened" claim), they must follow the rules and regulations for a reopened claim and render a formal decision unless one withdraw the claim prior to a decision being made. If they do render a formal decision they must notify you of this decision which means that they cannot then turn around and accept the request to reopen as a Notice of Disagreement because it is dated and received prior to the latest decision on this issue. The NOD must be received AFTER you have been notified of the latest decision on that claim. Reopened claims and NODs are not worked by the same people nor by the same administrative procedures. If one requests a "reconsideration" with the one year appeals period and then file a NOD before the one year elapses because VA hasn't made a decision on the "new" evidence, then one is asking that VA go through all the administrative procedures for a "reopened" claim up to and including a review by a Rating Specialist and then if the claim cannot be granted to just stop without a formal decision and send it back out to start reprocessing as an NOD. This would create an Administrative nightmare and simply cannot be done. If after requesting a "re-opening" of the claim you then file an NOD, the "re-opened" claim is no longer valid and whatever evidence you submitted with it will be considered as part of the NOD. As soon as the NOD is received on that particular issue, whatever it is, it MUST be worked under the appeal procedures. One cannot have both a reopened claim and an NOD on the same issue at the same time. In short, one must keep an eye on the expiration date for the appeal period so you could convert the "reopened" claim to a Notice of Disagreement (NOD) in the event a decision was not rendered before the appeal period expired. If you disagree with the decision and you aren't 100% certain that the new evidence will result in a grant, you cannot let that original appeal period run out. If the reopened claim is not granted and you don't submit an NOD within the appeal period for the first decision, you have lost the date of claim on that decision as a potential effective date. There are a limited number of situations where one should "re-open" the claim instead of filing an NOD, but these are few and far between and one must really, really know what they're doing when they make the decision to do this. The overwhelming majority of cases a Notice of Disagreement is the best path to take.

Can one ask for reconsideration of a claim without submitting new evidence, if one claims a clear and unmistakable error (CUE)?

Yes, but there has to be a clear and unmistakable error in the decision. If there isn't it does no good to claim that there is. The person looking at the claim of clear and unmistakable error can only change the prior decision by calling it CUE and this must be signed off on by the Service Center Manager. He/she can't change the decision simply by substituting his/her judgement for the original decision maker. So consideration of CUE is not really a "reconsideration". All they are doing is looking to see if there was an error in statement of fact or application of a law that resulted in an erroneous decision (see also "Clear and Unmistakable errors").

Re-opening claims:<br style="font-size: 10px; ">Applying for an increased evaluation:<br style="font-size: 10px; ">If you are already receiving service-connected compensation from VA for a/or disability(ies) a/or disease(s) and they have gotten worse since the last rating decision, you can request an increase in evaluation from VA. This is also known as a claim to Re-open. To do this you just need to write the VA a simply letter with your claims number on it (usually your SSN) stating that you believe your service-connected disability(ies) have gotten worse and you would like an increase in evaluation. Along with this letter you should attach any treatment records pertaining to your service-connected disability(ies) since your last C&P exam and rating decision. Once the VA receives your request for an increase, it will go to the Pre-Determination Team and go through the steps I previously mentioned in reference to an initial claim. In other words, you’ll receive that “Duty to Assist” letter again and all the things surrounding it. After your claim is “Ready to Rate,” it will go to the rating activity for a decision, just like a normal claim would. Once the RVSR has made a decision, the rating goes to the Post-Determination team to be promulgated as would an initial rating does. If you disagree with the RVSR’s decision, you can appeal that decision just as any other rating decision outlined in “Appealing an issue with VA.”

Previously denied claimed:<br style="font-size: 10px; ">If you have previously been denied a claim for disability compensation and that decision has become final, meaning the one year appeals period has run out, you can request to have that claimed be Re-opened. In order to be able to re-open a previously denied claim, you must submit “New and Material” evidence. This means evidence which is “new," or was previously not before the decision maker, and “material,” which is evidence that bare directly on the fact as to why the previous claim was denied. Once you have submitted “new and material” evidence and VA re-opens your claim, they again have a “Duty to Assist,” and your claim will go to the pre-Determination Team for development, then to the Rating activity, and Post Determination Team, just as a claim for increase or an initial claim would. Keep in mind that by simply submitting "new and Material" evidence doesn't mean that your claim will actually be granted. It just means that there is enough prima facia evidence to warrant another look by the VA!

The Board of Veterans Appeals (BVA):<br style="font-size: 10px; ">If you have received a decision from VA and sent the Notice of Disagreement to your Regional Office, and have either received a Statement of the Case or a Supplemental Statement of the Case from either a Decision Review Officer or the rating activity, you can further appeal the decision to the Board of Veterans Appeals by sending your Regional Office what is known as VA Form 9. By sending your regional office VA Form 9, you are what is called “perfecting” your appeal. Keep in mind that you only have 60 days from the date of the SOC or SSOC to submit this. Otherwise, the decision becomes final! Once the regional office receives your VA Form 9, they will certify your claim to be forwarded to the BVA and you will be put on the docket. During the time the C-file is being certified to be sent to the BVA, the claimant can submit addition evidence to support their claim. Once the C-file actually leaves the regional office of jurisdiction to the BVA, then the claimant has 90 days to submit any addition evidence.

Miscellaneous subjects concerning the VA

Clear and Unmistakable Errors (CUE):<br style="font-size: 10px; ">The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.

Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurate portrayed the current overall limited range of motion.

CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim.<br style="font-size: 10px; ">Reduction in benefits:

Reduction in current awards:<br style="font-size: 10px; ">If you are already receiving disability compensation from VA for a disability or disabilities and the VA wants to reduce those awards, the VA will send you a “proposal to reduce” letter showing the proposed action (Proposed rating they want to assign and the effective date of the reduction). This is just a proposal and cannot be appealed. Once you receive a “proposal to reduce,” you have 60 days from the date of that proposal to submit any additional evidence to the Regional Office stating why you think your evaluation shouldn’t be reduced. After the 60 day period is up, a RVSR will make a decision whether to actually reduce the award(s) or maintain the current rating as is. Once the RVSR makes a decision, they will send you a rating decision detailing their decision. If the RVSR decides to reduce the award(s), then the veteran has the one year period to submit a Notice of Disagreement (NOD) to start the appeals process, which is outlined above.

If you want to make the VA hold off on reducing the monetary amount on the proposed date, you can file a request for a hearing. This must be done in writing within 30 days of receiving the “Proposal to Reduce.” Once you have submitted a request for a hearing (just a simple letter as there is no prescribed form) the VA cannot reduce the evaluation on the proposed date until the hearing is held, regardless of how long it takes to have that hearing.

Pyramiding:<br style="font-size: 10px; ">Pyramiding is the prohibition of assigning more than one evaluation per bodily etiology based on the same symptoms. CFR 38, §4.14 states;

“The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.”

The VA compensates a veteran for symptoms of residuals from injuries or diseases suffered to a body part while on active duty, not the number of injuries or diagnosis to a particular body area. For example, if a veteran has a lower back disability, let’s say IVDS with a scoliosis. The scoliosis would not be rated separately because it is also within the lower back. It would be “lumped” together in the rating with IVDS. Having said that, the lower spine (Lumbar and Thoracic) and upper spine (Cervical) can be rated separately, because they are two separate moving parts of the spine. Another common one that veterans seem to misunderstand is with mental disabilities. A veteran can be only compensated for one mental disability at a time. For example, if a veteran has PTSD and Depression, the VA would determine which of the two warrants the higher rating and “lump” the lesser one with the other.

There is one joint in the body that can have more that one rating without pyramiding. That’s the knee. The knee can obtain two ratings, such as limited range of motion and lateral instability as long as the second one is compensable at the 10% rate or higher. For further reference see VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

Individual Unemployability:<br style="font-size: 10px; ">Individual Unemployability (IU) or also known as Total Disability due to Individual Unemployability (TDIU) is a rating that pays veterans at the 100% rate who do not meet the 100% criteria according to the 1945 Rating schedule because they are unable to secure and maintain a substanstial gainful occupation due to their service-connected disability(ies). The requirements needed to be considered for IU are spelled out in §4.16. There it states;

Ҥ4.16 Total disability ratings for compensation based on unemployability of the individual.<br style="font-size: 10px; ">(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:<br style="font-size: 10px; ">(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,<br style="font-size: 10px; ">(2) Disabilities resulting from common etiology or a single accident,<br style="font-size: 10px; ">(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,<br style="font-size: 10px; ">(4) Multiple injuries incurred in action, or<br style="font-size: 10px; ">(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

(b)It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]”

One thing to keep in mind is that if a veteran doesn’t meet the schedular requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.

Having said all of this, a veteran still should file the application for IU (VA Form 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VA Form 21-8940, it also acts as a claim for an increase in evaluation. If the veteran does not meet the schedular requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the schedular requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation die to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible.

If you decide to apply for IU, there are a couple of things you can do to speed the process up a little bit. When sending in VA Form 21-8940, you should have each of your former employers from the last five years fill out and sign VA Form 21-4192 and then attach them to the IU application. Also, if any of your private physicians can write statements concerning you being unable to work because of your service-connected disabilities, they will help and should also be attached to the IU application.

Note: Your service-connected disability(ies) must be the sole reason for being unable to work. If there is any non service-connected disability(ies) involved, then a physician will need to make a statement as to why the non service-connected disability(ies) are a non factor in you being unable to work.

Independent Medical Opinions by your private physician:<br style="font-size: 10px; ">An Independent Medical Opinion (IMO) from a treating physician is in many instances a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record including the veteran’s SMR’s. The medical professional should also state his or her area of expertise and additional training. For example, if the doctor is board certified in radiology, they should state that; especially when rending any comments in regards to radiological film studies. Also, it is very important that the physician give their rational as to why they have come to a certain conclusion. The physician, when giving his/her rational, should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

"is due to" (100% sure)<br style="font-size: 10px; ">"more likely than not" (greater than 50%)<br style="font-size: 10px; ">"at least as likely as not" (equal to or greater than 50%)<br style="font-size: 10px; ">"not at least as likely as not" (less than 50%)<br style="font-size: 10px; ">"is not due to" (0%)

The phrase “at least as likely as not” is the legal phrase that is needed for VA to award service-connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.

Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disability(ies) are related to your service, not something meant for the general public.

Reasonable Doubt rule:

The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded there claim. This is just like in baseball as the "tie goes to the runner." Keep in mind this doesn't mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn't mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.

Obtaining a copy of your Claims folder from VA:<br style="font-size: 10px; ">The best way to obtain a copy of your claims folder (your C-file) from the VA is to write a letter to your regional office citing the 1974 Privacy Act. When doing so under the 1974 Privacy Act, the VA has, according to federal law, 20 days to respond.

I hope this guide as been able to help you understand how the VA operates and why they need certain things to award disability compensation benefits. The key to being awarded service-connected disability compensation is evidence. If you have evidence of the three portions of a valid disability claim, you’ll receive you deserved benefits.





#3 retiredat44

 
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Posted 27 September 2010 - 02:20 PM

I called my rep from the American Legion, and asked her about the DRO and BVA hearing, she said, yes, I can do it, and whiel I am unclear how much it could delay the BVA video hearing.. I chose to have both the DRO and BVA hearing.. after all if I win at the DRO, there wil be no reson to go to BVA, but if I lose the DRO, I wil stil have the BVA..

I signed the for for it.. and faxed it back to her..

I feel there was more than enough evidence I have that the DRO wil see and recognize as in my favor,, and I can show I have enough , plus I can show it was ignored..
meanwhile I have more doctor appointments, and will take the results to the hearings..

I am trying to get some neurological disease conclusions and clarifications..

I believe I am chosing the best path.. and my representative seems fine with my decisions..
I always ask the rep what they think... and everyone else..

but, I do have a big problem with decisions.
being very sick.. I dont' feel well, and am not always sure I am making the best decision,,it is extrmemely hard to think logically when one is sick..

IMHO

#4 carlie

 
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Posted 27 September 2010 - 06:37 PM

I called my rep from the American Legion, and asked her about the DRO and BVA hearing, she said, yes, I can do it, and whiel I am unclear how much it could delay the BVA video hearing.. I chose to have both the DRO and BVA hearing.. after all if I win at the DRO, there wil be no reson to go to BVA, but if I lose the DRO, I wil stil have the BVA..



This is very confusing - something doesn't sound right to me with this.

#5 Pete53

 
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Posted 28 September 2010 - 05:38 AM

The VA has a system that is like a railroad track and your claim has to pass through stations. If denied and you ask for a DRO Hearing or Review it will stop there until another decision is made. Meanwhile the schedule or time requirements are still in affect and although the BVA will not touch it its a good thing you asked for it.

If you did not ask for a DRO Hearing you should do so.


Good Luck

#6 john999

 
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Posted 28 September 2010 - 08:54 AM

Retired

What don't you stop the train and get a lawyer on board. You ask basic questions and state how sick you are. If you had a decent lawyer you would not have to do this on your own. Your American Legion VSO does not care if you get 100% or 10%. He is on a salary. I would get a Personal Hearing with the DRO because the BVA is going to take years. You might be able to settle this at the VARO. I would still think about getting a lawyer. You don't pay up front. They take 20% of retro. In your case it would be worth it. If you get sick and miss a hearing all that time will be in the wind.

#7 retiredat44

 
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Posted 28 September 2010 - 11:36 PM

The DRO hearing will be my first opportunity to actually talk to someone face to face..., up until this point some faceless butthole is screwing me from behind some desk... and I want to actually confront them with my proof. I want to ask why they purposely ignored evidence., then if, for some BS lying scumbag reason they still want to fight.. then I will still be going to the BVA hearing..

#8 stillhere

 
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Posted 29 September 2010 - 06:42 AM

The DRO hearing will be my first opportunity to actually talk to someone face to face..., up until this point some faceless butthole is screwing me from behind some desk... and I want to actually confront them with my proof. I want to ask why they purposely ignored evidence., then if, for some BS lying scumbag reason they still want to fight.. then I will still be going to the BVA hearing..


Take look at this link provided by BVA to make vets aware of the appeal process:

http://www.bva.va.go...ets/010202A.pdf

It should help you understand where you are now in the process.

#9 carlie

 
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Posted 29 September 2010 - 07:43 AM

What doesn't make any sense to me on this is that,

If your claim issues are still within the jurisdiction of your
local VARO appeals level for a DRO hearing -
then they can not also be ripe for the being under the
jurisdiction of the BVA appeals level for a hearing at the same time.

I must be missing something.

#10 john999

 
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Posted 29 September 2010 - 08:11 AM

The DRO Hearing will be very informal. The benefit is that you are putting a face on your claim. Also, you can clear up misunderstandings. You still need evidence. You can bring a witness such as a spouse regarding your degree of disability. However, the hard, cold facts is what they go on. The DRO may smile and smile and still stab you in the back later, but it is the best the VARO has to offer.

#11 retiredat44

 
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Posted 29 September 2010 - 06:51 PM

I had an extremely bad experience with an SSDI lawyer and so I will think about the lawyer after the DRO hearing, if I still need help for the BVA hearing..
so, gotta wait until the DRO hearing , whenever that happens..

I really feel I can turn this around with the face to face DRO hearing, but if that does not go well with the American Legion representing me at that hearing, the lawyers listed in these forums are on my list to call..

I see there is a Vet Law office on your radio show tonight, and see the recording is not yet available.. but will put them on my list.. I wil need to see any lawyers in person.. my case is too much of a ClusterF$$$# to do it over the phone..

Edited by retiredat44, 30 September 2010 - 12:16 AM.


#12 carlie

 
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Posted 29 September 2010 - 11:01 PM

Why don't you prepare a question and join us here:


Live Interactive Chat with VetLawyers.com Thursday Sep 30, 2010 4:00 PM - 5:00 PM EDT You must be a registered member of the forum to join the chat. VetLawyers will be answering your questions.

#13 retiredat44

 
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Posted 30 September 2010 - 03:43 PM

What doesn't make any sense to me on this is that,

If your claim issues are still within the jurisdiction of your
local VARO appeals level for a DRO hearing -
then they can not also be ripe for the being under the
jurisdiction of the BVA appeals level for a hearing at the same time.

I must be missing something.



as I understand it, the first step after nod denial, is then DRO, then BVA.. so I am going to use these steps..

now I am confusesd how I confused you??

if I did not use the DRO step, I would have missed that opportunity... and went straight to BVA..

#14 carlie

 
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Posted 30 September 2010 - 06:01 PM

as I understand it, the first step after nod denial, is then DRO, then BVA.. so I am going to use these steps..

now I am confusesd how I confused you??

if I did not use the DRO step, I would have missed that opportunity... and went straight to BVA..


retired,





Well of course I would not suggest not having a DRO/ Hearing - it's of utmost importance
to keep your claims at the VARO level to try and get the issues sorted out there.


The way you confused me is actually quite clear in what you posted earlier,


" I called my rep from the American Legion, and asked her about the DRO and BVA hearing, she said, yes, I can do it, and whiel I am unclear how much it could delay the BVA video hearing.. I chose to have both the DRO and BVA hearing.. after all if I win at the DRO, there wil be no reson to go to BVA, but if I lose the DRO, I wil stil have the BVA.. I signed the for for it.. and faxed it back to her.."


It doesn't work that way, when your dealing with the same claim issues.
You can't have a request in for a DRO/Hearing and a Form 9 (I-9) in at the same time.
This is how it goes:


Lets say:
1) Vet files claim on Jan 1990
2) VBA promulgates a rating decision that is a denial dated Jan 1991
3) Vet files a timely NOD (within one year of said rating decision) dated July 1991.
Vet tells VBA -
a) I want a DRO De Novo Review
or
b) I want a DRO Hearing
4) About 6 - 18 months goes by and VBA notifies vet they have scheduled
a BVA Hearing for them to attend and that they are entitled to get representation
if they so desire. The DRO Hearing is scheduled for Dec. 1992.
5) After the DRO Hearing, the DRO decides some additional development is needed
and an additional C&P exam is scheduled for the vet in May 1992.
6) The DRO promulgates a new decision in March 1993 (probably a SOC) that is a rubber stamped
denial of the prior denial. Additional information the vet receives with this is a Form 9
Appeal to the Board of Veterans Appeals, with instructions on how to file this substantive appeal
along with the time limits in which to file it.
7) In April 1993 Vet files Form 9 substantive Appeal to the Board of Veterans Appeals (and hopefully
VSO does a Form 8 along with this,) and hopefully the vet and/or VSO requests either a BVA video conference hearing
or a BVA travel board hearing.
8) The VARO does a little more work getting the file in order and buttoning up their denials
makes sure a VCAA form was sent to the claimant, etc...
And for now the claim just sits and sits and sits at the VARO - until the BVA tells the VARO to
transfer your file to them.
9) By now it's around September 1994 - the BVA has your claim under their jurisdiction and assigns
it a docket number. The BVA is aware you have requested a BVA Hearing.
In February 1995 the veteran receives a letter from the BVA stating they will schedule your BVA Hearing
as soon as possible, but Hearing are scheduled in the order they are received (going by docket number).
They will notify you when the Hearing is scheduled and you have the right to continue submitting additional
information and evidence right up until a decision is made.
The veteran continues to amass additional information and evidence and sends it into the BVA
to continue to help support their claim.
10) In June 1996 the veteran/VSO receive notice that a DRO Hearing has been scheduled at their local VARO.
The Hearing date is scheduled for August 1996 and that you are responsible for your own expenses to attend the
Hearing as they can not pay for your transportation.
11) Vet / VSO attend BVA Hearing June 1996. The Hearing is recorded and lasts one hour.
At the Hearing all of your file is sitting either next to or behind the BVA Administrative Law Judge,
but he never touches it although he does smile nicely and appears to write a few notes.
The Hearing is concluded and if it has been requested you or your VSO will get a written copy
of the Hearing transcripts.
12) December 1996 the vet / vso receives a big manila envelope in the mail.
It's a written copy of the Hearing transcripts.
13) July 1997 vet / vso get another manilla envelope in the mail, finally an decision from
the BVA, or so they thought. It (hypothetically) reads something like this.


Order:
Issue -
1) The claim for Hearing loss is granted as service connected. The available medical evidence shows
air conduction at XXX, pure tone at XXX, speech recognition at XXX. According to the tables
in 38 CFR Part 4 - Hearing loss is evaluated at zero percent.
2) The claim for Tinnitus remains denied. The examiner stated the veteran relates he has
experienced Tinnitus a time or two in his life, but the SMR's revealed no acoustical trauma on active duty
and the Tinnitus is non-recurrent. It is the examiner's opinion that the veterans rare symptoms of Tinnitus
are less likely than not related to any active duty experience.
3) The claim for TDIU is denied as the veteran does not meet the criteria shown in 38 CFR 4.16
and has not been found to be unable to hold substantial gainful employment.


Remanded Issues:
The issue of gunshot wound to the second index finger right hand is remanded to the AOJ / VARO.
Although the veteran has submitted additional evidence to the BVA, showing this injury may have
been sustained while on active duty, this evidence has not yet been considered by the
Agency of Original Jurisdiction / VARO.
The veteran has at no time submitted a Waiver of AOJ or VARO consideration.
For this reason the issue of gunshot wound second index finger right hand is remanded.
1) Here they type in the remand instructions.
2) Here they apprise the AOJ / VARO that all BVA remands are to be given expeditious treatment,
38 USC XXX, 38 CFR XXXX, etc....


retired,
Sorry to hit you up with this crummy news, but this is the way I know it to go
because me and many claimants I have helped - have lived it.



#15 retiredat44

 
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Posted 30 September 2010 - 06:45 PM

I read what you wrote and am confused, I really need things in simple form, I have been sick to long to go through a maze..
sorry, I don't mean you puposely made it a maze, but I need it simplified..

I have al the evidence right now.. the evidence was ignored. I need to contront those repsonsible to find out why it was ignored..
i was sick on active duty with the issues I am claiming..
I continue to get sicker..
I have the documents..
I have the IMHO
I am already rated 50% for the undelying causes..

When I orignally signed the form 9 (think,, it was..)
asking for the BVA, I for some reason didn't get clairity on going to both the DRO asnd BVA,
and thinking it through I had it changed to both a DRO and BVA, I don't want to throw a way a chance at one more opportunity..

what is wrong with that??

I appreciate your help, but I have to understand it to give a better reponse..
being really sick sucks because every decision is hard, hoping that the fog of illnesses doesn't causes more problems..

I feel that no one else can help me because they have no clue what it like to be in a fight while very sick.. they just have the passion needed not the patience..
at 5pm they can go home and live their life, I can't leave illness at 5pm..



retired,





Well of course I would not suggest not having a DRO/ Hearing - it's of utmost importance
to keep your claims at the VARO level to try and get the issues sorted out there.


The way you confused me is actually quite clear in what you posted earlier,


" I called my rep from the American Legion, and asked her about the DRO and BVA hearing, she said, yes, I can do it, and whiel I am unclear how much it could delay the BVA video hearing.. I chose to have both the DRO and BVA hearing.. after all if I win at the DRO, there wil be no reson to go to BVA, but if I lose the DRO, I wil stil have the BVA.. I signed the for for it.. and faxed it back to her.."


It doesn't work that way, when your dealing with the same claim issues.
You can't have a request in for a DRO/Hearing and a Form 9 (I-9) in at the same time.
This is how it goes:


Lets say:
1) Vet files claim on Jan 1990
2) VBA promulgates a rating decision that is a denial dated Jan 1991
3) Vet files a timely NOD (within one year of said rating decision) dated July 1991.
Vet tells VBA -
a) I want a DRO De Novo Review
or
b) I want a DRO Hearing
4) About 6 - 18 months goes by and VBA notifies vet they have scheduled
a BVA Hearing for them to attend and that they are entitled to get representation
if they so desire. The DRO Hearing is scheduled for Dec. 1992.
5) After the DRO Hearing, the DRO decides some additional development is needed
and an additional C&P exam is scheduled for the vet in May 1992.
6) The DRO promulgates a new decision in March 1993 (probably a SOC) that is a rubber stamped
denial of the prior denial. Additional information the vet receives with this is a Form 9
Appeal to the Board of Veterans Appeals, with instructions on how to file this substantive appeal
along with the time limits in which to file it.
7) In April 1993 Vet files Form 9 substantive Appeal to the Board of Veterans Appeals (and hopefully
VSO does a Form 8 along with this,) and hopefully the vet and/or VSO requests either a BVA video conference hearing
or a BVA travel board hearing.
8) The VARO does a little more work getting the file in order and buttoning up their denials
makes sure a VCAA form was sent to the claimant, etc...
And for now the claim just sits and sits and sits at the VARO - until the BVA tells the VARO to
transfer your file to them.
9) By now it's around September 1994 - the BVA has your claim under their jurisdiction and assigns
it a docket number. The BVA is aware you have requested a BVA Hearing.
In February 1995 the veteran receives a letter from the BVA stating they will schedule your BVA Hearing
as soon as possible, but Hearing are scheduled in the order they are received (going by docket number).
They will notify you when the Hearing is scheduled and you have the right to continue submitting additional
information and evidence right up until a decision is made.
The veteran continues to amass additional information and evidence and sends it into the BVA
to continue to help support their claim.
10) In June 1996 the veteran/VSO receive notice that a DRO Hearing has been scheduled at their local VARO.
The Hearing date is scheduled for August 1996 and that you are responsible for your own expenses to attend the
Hearing as they can not pay for your transportation.
11) Vet / VSO attend BVA Hearing June 1996. The Hearing is recorded and lasts one hour.
At the Hearing all of your file is sitting either next to or behind the BVA Administrative Law Judge,
but he never touches it although he does smile nicely and appears to write a few notes.
The Hearing is concluded and if it has been requested you or your VSO will get a written copy
of the Hearing transcripts.
12) December 1996 the vet / vso receives a big manila envelope in the mail.
It's a written copy of the Hearing transcripts.
13) July 1997 vet / vso get another manilla envelope in the mail, finally an decision from
the BVA, or so they thought. It (hypothetically) reads something like this.


Order:
Issue -
1) The claim for Hearing loss is granted as service connected. The available medical evidence shows
air conduction at XXX, pure tone at XXX, speech recognition at XXX. According to the tables
in 38 CFR Part 4 - Hearing loss is evaluated at zero percent.
2) The claim for Tinnitus remains denied. The examiner stated the veteran relates he has
experienced Tinnitus a time or two in his life, but the SMR's revealed no acoustical trauma on active duty
and the Tinnitus is non-recurrent. It is the examiner's opinion that the veterans rare symptoms of Tinnitus
are less likely than not related to any active duty experience.
3) The claim for TDIU is denied as the veteran does not meet the criteria shown in 38 CFR 4.16
and has not been found to be unable to hold substantial gainful employment.


Remanded Issues:
The issue of gunshot wound to the second index finger right hand is remanded to the AOJ / VARO.
Although the veteran has submitted additional evidence to the BVA, showing this injury may have
been sustained while on active duty, this evidence has not yet been considered by the
Agency of Original Jurisdiction / VARO.
The veteran has at no time submitted a Waiver of AOJ or VARO consideration.
For this reason the issue of gunshot wound second index finger right hand is remanded.
1) Here they type in the remand instructions.
2) Here they apprise the AOJ / VARO that all BVA remands are to be given expeditious treatment,
38 USC XXX, 38 CFR XXXX, etc....


retired,
Sorry to hit you up with this crummy news, but this is the way I know it to go
because me and many claimants I have helped - have lived it.




#16 JustPLS

 
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Posted 30 September 2010 - 09:28 PM

I made the same choice when I filed my Form 9. I chose a BVA hearing in Washington, DC.

The Buffalo Regional Office also included a form with which I could request a DRO hearing in addition to the BVA hearing. I chose to add the DRO hearing. My understanding of this process from talking with my VSO is that I will attend a DRO hearing, the DRO will make changes to the decision if he/she sees fit. Following the hearing, I will be issued a new decision and a Supplemental Statement of the Case. Then, and only then, if everything is not granted, I can accept the DRO decision or decide to continue with the appeal to the BVA. If I decide to continue the appeal, the appeal will then be certified to the BVA.

I agree with everything Carlie said, especially the part about keeping the claim in the RO as long as possible. Good luck in your quest!

Edited by JustPLS, 30 September 2010 - 09:33 PM.


#17 retiredat44

 
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Posted 30 September 2010 - 11:31 PM

What you said is exactly what I am doing..

I made the same choice when I filed my Form 9. I chose a BVA hearing in Washington, DC.

The Buffalo Regional Office also included a form with which I could request a DRO hearing in addition to the BVA hearing. I chose to add the DRO hearing. My understanding of this process from talking with my VSO is that I will attend a DRO hearing, the DRO will make changes to the decision if he/she sees fit. Following the hearing, I will be issued a new decision and a Supplemental Statement of the Case. Then, and only then, if everything is not granted, I can accept the DRO decision or decide to continue with the appeal to the BVA. If I decide to continue the appeal, the appeal will then be certified to the BVA.

I agree with everything Carlie said, especially the part about keeping the claim in the RO as long as possible. Good luck in your quest!



#18 stillhere

 
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Posted 01 October 2010 - 05:37 AM

Retired, as I said before take a look at this link to a little publication by the BVA

http://www.bva.va.go...ets/010202A.pdf it is an illustrated little booklet that is very simple of the

claim/appeal process. It will help you understand clearly what is happening and will happen with your appeal.

Good Luck to you!

Edited by stillhere, 01 October 2010 - 05:39 AM.


#19 carlie

 
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Posted 01 October 2010 - 12:15 PM

[quote name='retiredat44' timestamp='1285893924' post='220845']
I read what you wrote and am confused, I really need things in simple form, I have been sick to long to go through a maze..
sorry, I don't mean you puposely made it a maze, but I need it simplified..

I am sick too, but I took the time in my last post to simply post the steps for you
in regards to a DRO and a BVA.


If you have requested a DRO hearing - which is an APPEAL - then your APPEAL is still at the local level.
The BVA CAN'T EVEN ACCEPT YOUR APPEAL to them yet - BECAUSE you have APPEALED at the local
level by requesting a DRO Hearing.


You CAN NOT HAVE an APPEAL going at BOTH levels at the same time, on the same issues !


In other words - while you are waiting for your DRO Hearing, you are not also at this same time
waiting on anything at all, to do with the BVA on your claim, because your claim is under the jurisdiction
of the VARO.
Your claim can not be waiting in line at both levels on the same issues.


The BVA can not accept nor take action on your Form 9 (Substantive Appeal) to be under their jurisdiction
until AFTER your APPEAL at the local level has been adjudicated.


Your claim can not even start waiting in line for any action at the BVA
until it has finished at the local level.


I have put it as simple as I know how to.


If what I've posted is wrong, someone will come along and correct it.








#20 retiredat44

 
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Posted 01 October 2010 - 01:09 PM

Ok, I understand,, only when the DRO process has been used up can it go to BVA.. but I really need to correct the errors the VA made in my claim..
I feel that I can go see these clowns in person to have their mistakes corrected, they totally ignored evidence, I need to tel them, and the only way to tell them is in person.. as they will not reason through any other communication. If they only let people tell them they made mistakes, then we would not have to go through these extra steps..

(they totally ignored most of my evidence..) I have no idea if they even read it..

If after I correct the record, and they still screw me at DRO level, then the clock starts on BVA. hearing..

#21 carlie

 
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Posted 01 October 2010 - 01:12 PM

Ok, I understand,, only when the DRO process has been used up can it go to BVA.. but I really need to correct the errors the VA made in my claim..
I feel that I can go see these clowns in person to have their mistakes corrected, they totally ignored evidence, I need to tel them, and the only way to tell them is in person.. as they will not reason through any other communication. If they only let people tell them they made mistakes, then we would not have to go through these extra steps..

(they totally ignored most of my evidence..) I have no idea if they even read it..

If after I correct the record, and they still screw me at DRO level, then the clock starts on BVA. hearing..




retired,
Also, if the VBA does not feel specific evidence is both credible and probative - then they do not have to consider it.
Make sure that this evidence you fell they have not considered is both credible and probative.

#22 retiredat44

 
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Posted 01 October 2010 - 01:47 PM

I keep getting this error:
"You have posted more than the allowed number of quoted blocks of text "

Of course it is probative, and the IMO covered it..
plus all of them are on the public records of all health organizations as carcinigens, and as cancer causing chemicals..
As I said, I was soaked in many chemicals daily, the denial only covered one of the chemicals, they totally ignored the rest.. and never once they they mention all of them in the denial.. plus, it appears they totaly took my health history out of context... and skipped several years.. and there is more..

Here is a copy of the form..
I chose both the DRO and BVA option

Attached Files



#23 retiredat44

 
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Posted 01 October 2010 - 04:27 PM

Why don't you prepare a question and join us here:


Live Interactive Chat with VetLawyers.com Thursday Sep 30, 2010 4:00 PM - 5:00 PM EDT You must be a registered member of the forum to join the chat. VetLawyers will be answering your questions.



I wish I would have known they were going to be on , but by the time I saw it its was too late.. as they would have probably been able to answer one of my main questions...

oh well,, my fault for not seeing it in time..

#24 retiredat44

 
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Posted 08 October 2010 - 12:12 PM

I spent 1.5 hours with my VSO this morning, and all the paperwork has been straigthened out, all fixed, new paperwork submitted for DRO, everything consolidated, cleaned up,

the DRO requests now have al the correct conditions listed, al the causes of injuries. all professionally, I kept on it, and now the new paperwork is being submitted today.. hard to explain, as I have several claims, and al going for DRO review..

I was freaked out, and could not sleep, now it is all put together nicely, and there should be no confusion about my claims and conditions when the VA reviews it and I have the DRO hearing,..

the VA should now be able to understand my claim and there should be no missing pieces. I look forward to a hearing.. I have my ducks all in a row..

btw, my VSO said my case was the most complicated case she has ever seen, medical complications wise.

Edited by retiredat44, 09 October 2010 - 01:00 AM.


#25 retiredat44

 
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Posted 24 October 2010 - 07:39 AM

I am expecting a letter in the coming days for the DRO review/hearing. I am stil unclear if they do a review with the new evidence, before the hearing, or just do the hearing, then the review, or both.. my VSO says that she expects the hearing to be by December, she says she saw the schedule, but doesn't know the day yet... if not December then January....

I have everything ready... I hope...

Anyone else getitng a hearing in San Diego soon?
:unsure: