The Law Offices of Michael L. Shea, LLC

PO Box 460092

Aurora, CO 80046-0092

303-710-9521

mike@mikesheaveteranslaw.com

Appeals and the DRO Process Advocacy Tips for Claims and Appeals

Escalating the Appeal to the Board of

Veterans’ Appeals

The Court of Appeals for Veterans’ Claims

EAJA

Title 38 United States Code

38 Code of Federal Regulations

M21-1MR (Manual Re-write)

www.va.gov Veterans Benefits Manual

BVA website, www.bva.va.gov

BVA search engine at http://www.index.va.gov/search/va/bva.html

CAVC website, http://www.uscourts.cavc.gov/

Who is the Veteran? ◦ Managing the expectations of the Vietnam Veteran

◦ Time for the appeal process to work through the various VA levels

When was the denial letter received? ◦ Veterans often come to us after the appeals

deadline has passed

Did the Veteran read the denial letter? ◦ The VA sets out the reasons for the denial

◦ Did the Veteran miss an examination appt?

◦ Did the Veteran submit the requested information?

◦ Did the Veteran correspond with the VA?

◦ Was the Veteran his own advocate or did he use a VSO or County Veterans Service Officer?

◦ What is the Veteran’s relationship with the local RO?

Getting the Veteran’s C-File from the VA often takes six months or more ◦ Appeals deadline issues

◦ C-File may be in another state

Length of time between when Veteran saw a civilian healthcare provider and the date of the claim ◦ Doctor is dead, no longer in practice or records

have been destroyed

Correct false impressions of entitlement ◦ “I was in Vietnam and I’m owed” ◦ The VA sent me to Vietnam and I’m not getting any

help

Correct Agent Orange misimpressions ◦ “I was in Vietnam and exposed to AO so I get

benefits because of that”

Manage expectations ◦ The evidence required, e.g. current diagnosis ◦ The time it is going to take

VA changed PTSD regulations in 2010 to: ◦ Liberalize claimed stressors “fear of hostile military or terrorist activity”

◦ Covered all veterans regardless of where and when they served

Current diagnosis – Psychiatrist or Psychologist

For Vietnam veteran, letters to and from home, statements of friends and family who knew him before and after tour.

Issues- ◦ Veteran comes in and says “I have been doing a lot

of reading and think I have PTSD”

◦ Explain the concept of “current diagnosis”

◦ Ask questions – see materials at p. 39.

◦ Refer to private practitioners or VA

I’m having these symptoms – what’s wrong with me?

Work with the veteran to gather information about the stressors and help him or her draft the stressor letter

What happened, where did it happen, was anyone else there with you?

Did you lose a unit member, friend?

Did you kill an enemy combatant?

Denial of Service-Connection

Rating

Effective Date

One or all of the claims in the denial letter

Appeals process starts with the filing of NOD

Always, always, always request the DRO process and a face to face hearing. ◦ Veteran entitled to a hearing and a de novo review

◦ Veteran gets to tell his story in his words

◦ Representative can present new evidence prior to and during the hearing

◦ Representative gets to develop a relationship with VA employee (DRO)

New NOD form – VA form 21-0958 ◦ Use It! ◦ File as soon as possible but no later than one year from decision letter ◦ No telephone contact with Veteran ◦ All contact should be with Representative ◦ Request the DRO Process, de novo process and a hearing ◦ Request informal hearings with DRO ◦ Request a SOC if DRO denies the appeal

Hearings ◦ Informal

Don’t allow veteran to file anything without Representative’s knowledge, especially Veteran’s spouse

Don’t file new claims while DRO process is on-going

CUE – Clear and Unmistakable error(s) ◦ The Veteran “wasn’t in Vietnam” although his

dd214 clearly shows that he was; ◦ “Service treatment records do not reflect that the

Veteran was seen for this problem during service” but a review of the military medical records shows clearly that he was seen on numerous occasions;

Claim was not worded properly ◦ The “secondary to” issue, especially in AO claims

Veteran was not provided an examination

VA recently propounded Disability Benefits Questionnaires (DBQs) ◦ Health professionals and VA doctors weren’t

wording the diagnostic reports pursuant to the requirements of 38 CFR Part IV

◦ DBQs can be submitted prior to the DRO hearing or even during the hearing. Any rating granted may not go back to the date of the original claim but to the date the DBQ was signed as that was the “date of diagnosis”

Veteran doesn’t have to have served in Vietnam to show exposure to Agent Orange ◦ Recent disclosures on AO shipped to Subic Bay,

Philippines

◦ Veteran’s exposure to AO at Ft. McClellan, AL

Research EPA websites, BVA decisions and CAVC decisions

Distinguish between presumptive diseases and diseases secondary to the presumptive disease ◦ Peripheral neuropathy – 10% w/in one year of

exposure – but look at the research on Diabetes Mellitus 2 and diabetic neuropathy which is secondary to DM

◦ Ischemic heart disease (coronary artery disease or “hardening of the arteries”) which is presumptive, can lead to a variety of problems, such as ischemic stroke.

The appeal cannot be satisfied

Complete review of claims folder and all necessary development

The NOD has not been withdrawn

Appropriate response time has passed

Average time for RO to issue SOC – 261 days

DRO issues Decision, SOC and includes VA Form 9, Appeal to Board of Veterans’ Appeals

Form 9 must be filed within one year of the date of mailing of the DRO’s Decision or within one year of the date of the SOC

Written correspondence ◦ Appeal is being perfected as to all of the issues laid out in the

SOC or subsequent SSOCs ◦ Specifically identifying all issues being appealed ◦ Specific arguments relating to errors of fact or law

A statement at a formal hearing that has been reduced to

writing

DRO dockets case ◦ Lengthy – about 18 months from the filing of the VA9

until BVA receives the C-File from the RO

BVA sends docket notification to the veteran (representative), docket number and that all appeals will be handled in order received.

Hearings

Decision- Averages 943 days from filing of VA 9 form

p. 24

The BVA may remand an appeal to the RO for: ◦ Development of additional evidence

◦ Due process

◦ Reconsideration of issues

Remand requires the RO to give special attention and expeditious handling ◦ Average time for decision if remanded = 445 days

File an application for admission to practice

Electronic filing (CM/EF) – Attorney must complete online modules and wait for login and password

Written briefs appeals system

Oral argument only upon motion by one of the parties and then only if Court grants motion – held at various places

Appeal is to the Court of Appeals for Veterans Claims (CAVC)

BVA decision must be final ◦ Veteran cannot appeal a remand of a BVA decision

to the RO

Appellant has 120 days to file a Notice of Appeal

Ahhh – Attorneys fees at last (maybe) ◦ $125 per hour

File Form AO 291within 30 days after Court’s judgment becomes final

Secretary may file a response if fees are disputed

Consultation in good faith required

Simultaneous application to Discharge Review Board but separate from VA Appeal

Usually involves issues of PTSD or TBI for younger Veterans of Iraq and Afghanistan

Discharge Review Boards are granting more upgrades when PTSD and/or TBI is involved