Member Denise writes me and says “What to do? Been denied on jetguns and didn’t know I needed a nexus! Fired my VFW rep who is no longer BFF. Found you by accident. I have the letter from my family doctor (attached-please read) and am now debating a DRO vs the regular way to appeal. I have 20 days to file a F-9 or go for the DR thing. What do I do?
I have never been a fan of DRO reviews. With that said, let’s look at what we’re dealing with. If you are denied after you submit your claim, the normal course of events is to submit a Notice of Disagreement or NOD. You might submit new and material evidence (such as your new nexus) when you are denied. This can occur after the denial and before the NOD or you may submit the new evidence with the NOD. In any case, the VA will respond with either a grant or a Statement of the Case (SOC). You have two alternatives. vA will present both of these options to you when your denial is continued. You can pursue the normal, traditional appeals process or ask for a Decision Review Officer to investigate this with an eye towards overturning it.
This is why I hate them. vA is going to hang you out for a year on this. Your chances, which were 15% on winning at the outset, are just as bleak at a DRO Review. Unless your evidence is so remarkable as to refute and rebut everything used to deny you, you’re simply going to get a Supplemental Statement of the Case (SSOC) a year or more later saying “We so solly, GI. No can do”. A SSOC is “What part of No don’t you understand” in vAspeak. The letters are very polite but they are denials.
You may also ask for a hearing before the DR Officer to plead your case. This will drag the timeline out even further before the eventual traditional appeal to DC. Don’t get me wrong. All DRO reviews are not fruitless. Some prevail in the process but I point out that the numbers who do are miniscule.
What many Vets don’t realize is that by submitting new and material evidence after a denial, NOD or at any time in that year following the initial denial, you will get a DRO review of the newly submitted evidence anyway. Once denied, any review of newly submitted evidence is automatically done by a higher up rather than the Rating Officer who did the original denial. Asking for a DRO review is redundant on top of this. If you get a new denial, a DRO hearing is not likely to change the fellow’s mind.
The M21- 1MR Manual forbids VA personnel (and DROs) from bargaining but that is just for show. In fact, many are susceptible to some horsetrading in the back room. This usually occurs in a VSO or lawyer- represented environment. It never occurs on paper. It’s done verbally without tape recorders. You, as a pro se Vet representing yourself, are not likely to be able to go down and plead your case without a month’s delay in getting an appointment. What inevitably occurs is your representative will proposition the DRO like a prostitute. The quid pro quo will be “How about if my client agrees to take 30% for PTSD and we drop the Hepatitis claims along with all the secondaries?” While this may be unethical, it happens. I doubt you will hear the DRO offer it nowadays, but it was a bargaining tactic in the 90s when the vA had a more laissez faire attitude about this. Of course in the nineties, it was far more likely that the DRO would proposition your representative rather than the reverse. All that has changed.
Nowadays the DRO might say that your chances of winning claim X are about the same as finding a snowball in Hell. It would be up to your representative to interpret this as an opening to proffer a trade. Again, the chances of success are slim. This is why I personally don’t see wasting my time hanging around the RO and expecting a miracle-especially where a jetgun claim is involved.
Always remember that everyone at the RO is evaluated in performance reviews. Success is rewarded with bonuses and Attaboy Letters attesting to how well you did the job in any year. Everyone likes a well-endowed trophy wall so the wiggle room is there. A DRO will be recognized for his success in resolving claims disputes and he/she can get the signatures on the grant if there is enough substance to rationalize it. If it furthers his/her career without inviting disaster from above, it may come to fruition. You will inevitably end up with the short end of the stick in this, but oh well.
I prefer the take no prisoners attack and going straight to DC in jetgun claims. There is no guarantee that if you somehow won, you won’t find yourself in a double DRO review quagmire. I speak of a scenario where you end up appealing the lowball rating they try to pawn off on you. This happens frequently enough to remark on it. We have had innumerable Vets with everything needed to get 40 or 60% for HCV on DC7354 yet vA hands them the 10-20%. They immediately start the NOD process over again and spend a year or two trying to bump it up where it belongs. The medrecs may clearly show the entitlement, but that means nothing if the rater makes no effort to really peruse the file.
vA will tell you not to submit duplicate documents to avoid confusion. Ignore them. If they didn’t read all about your near-constant debilitating symptoms the first go-around, it’s time to take it up a notch with a yellow hi-lighter pen and a nasty letter couched in polite terms. If possible, go back to your doctor and get it in his words. I find that when you show a doctor what vA sends out , they take umbrage with a lowly peon unschooled in the medical arts opining like one. This often induces them to write down whatever you ask within reason. My doctor wrote a glowing letter about why I was never going to get better and how I was precluded from ever doing Interferon therapy. Result? Permanent and Total rating in 90 days instead of two years.
So to you, Denise, I say its your choice. Depending on your RO, and I pray its not in Oakland, Seattle or the two in Texas, I would probably say go East, young lady. Since I am not a VSO or a Veterans Representative in the legal sense of the word, my advice is purely hypothetical to avoid lawsuits. Justice in this system seems to improve the higher you go. I don’t think anyone at vA reads your C-file in detail until the first visit to the CAVC and a Joint Motion For Remand issues, so a decision prior to that is a wasted effort but nevertheless one required on the path to victory. Even if you don’t win all the battles, the objective is to win the war. Don’t lose sight of that. You haven’t mentioned anything about possible representation by a lawyer so I assume you are adamant about doing this yourself. Just beware of the pitfalls. They have 500 law dogs arrayed against you. If you lose a DR review, I strongly suggest a leagle beagle in DC. It may be the difference in how long you fight for what you’re entitled to. As for VSOs, you don’t get what you don’t pay for.
One last suggestion would be to read my book. I covered DRO Reviews in it and it will give you a better feel for the process. And to set your mind at ease, the VFW rep. was never your BFF. It was a fig newton of your imagination.