I have received a query from member Joel who asks several questions which are of interest to us all. Here is what I do know on the subject. I would ask any with additional knowledge on this subject to please contribute their own observations for everyone’s benefit.  I have done one of each. In 1990, after my denial, I requested an opportunity to present my case before a Decision Review Officer. They were not specifically called that then but it’s immaterial. The hearing was taped and I had my DAV representative with me. Being naive, I had no idea that trying to submit what would be viewed now as testimony I was unqualified to, was going to be futile. Remember, this was the dawn of the new VA . Espiritu v. Derwinski was two years in the future. I was on new turf that had no judicial precedent.

VA had for years existed in what Sen. Alan Cranston called “splendid isolation” with no Congressional oversight and no venue to appeal higher than the BVA level. With the advent of the 1988 VJRA, all this changed. Unfortunately, the VA was less than joyous about this. Having cabinet rank was all well and fine. Having a new Article One Court overseeing them wasn’t. The animosity was like electricity in the air. Everything was new and untested. I stumbled into this July 9th, 1990.

The hearing was conducted informally and my representative, Ron Ampe, did what he could to put this in the best light. This was before nexus letters. Everything hinged on 38 CFR § 3.303(b) which dictated the principles of continuity of chronicity. I had no copy of my SMRs and no one even told me I had the right to them. When the hearing officer made some comment about a note on my back, I asked to see them. I felt like a one-legged man in an ass-kicking contest. I presented testimony from my diary I kept from those years and much head-bobbing was accomplished. What was absent was all the civilian hospital records from my remote/isolated duty where the injury occurred. We had no military medical facilities and used a civilian hospital in town. They had one Dutch doctor who spoke English. It was obvious that without any documentation, this was a one-way trip to nowhere. Mr. Ampe leaped into the void and ably coached a cohesive lay testimony from me to fill in the record of what transpired those many years ago. This was supposed to fix it. In addition, I gave sufficient information short of a zip code of the name and location of the hospital. Helen Keller could have found it by the time we concluded the hearing.

In spite of this, VA made absolutely no move to obtain these records and denied me yet again. I promptly called long distance and obtained a small sample of the medical file relating to the back/hip injury proving my contentions. VA denied again. This set the stage for the Form 1-9 (now a Form 9) and the official substantive appeal to DC.

The BVA didn’t make any effort to remand for them either and proceeded to deny on the existing records over my prior objections. This was a clear failure of the duty to assist. Unfortunately, VA saw that yawning hole as a future problem and closed it in a CUE regulation (See my write-up on Caffrey v.Brown). https://asknod.wordpress.com/2012/01/15/cue-failure-in-duty-to-assist/

Since Ron didn’t tell me I could appeal this to the CAVC, and I was dumb, my Andy Warhol fame in 1993 escaped and I went down in flames. The theory is loosely “An incomplete decision is not an incorrect decision”. The remedy for my predicament was simple. If I had appealed it to the Court, they would have remanded it for failure of the duty to assist and all would have been made right. By failing to appeal, I let stand an incomplete record. See how that works? They cheat by not helping you, in spite of precedence telling them to, and you lose.  It’s perfectly legal until they get caught. They can then apologize and “fix” it. Pro se Vets would do well to note this habit of the VA and prepare for or expect it.

My second encounter was last year before a Veterans Law Judge (VLJ). This hearing method is available in several different possibilities. You may elect to have a hearing before a VLJ by videoconference  from the VARO with the judge sitting in DC. You may also request a hearing before one sitting in front of you at the RO live. The third alternative, if you are close to DC or well-heeled, is to request one there. You do this by checking off the box on your Form 9 when you submit it.

I chose the face to face method because I do not think a video camera can convey your honesty and earnestness. Being able to look into a judge’s eyes and allow him to do likewise is an unnerving experience that is not an option for all of us. Some are uncomfortable in this venue and it can backfire if you do not present yourself suitably.

In the case of a DRO hearing, you will be face to face with the hearing officer  and you will be dealing with a GS-13  who feels he/she has seen everything. They are not a judge and do not have a legal background that would give them insight into this process. They work from their bible, the M-21 Adjudication manual. This is a simple If…Then manual. There is no weighing of one’s character and demeanor. It’s strictly by the facts.  Absent any new facts developed and presented to the DRO, you case will belly flop again. When I say new evidence, I mean something cogent from your contemporary records that might change things. Simply bringing in new medrecs showing you are getting sicker is not going to change the basis for the denial.

This is what I tried to convey to Joel. You need to view the evidence used to deny you carefully. Take each item and find the key to unlocking why it was used against you. This is called rebutting the evidence. If you can prove with existing, incorrectly interpreted evidence, that they erred, you may win. You have to have a silver tongue to do this. Lay testimony is not going to float your boat all by itself. Cold, hard facts that change the way the evidence was viewed is what carries the day. New evidence from service is often hard to come by. Buddy letters are often employed and carry a lot of weight if the VA can’t sink their can opener into them. DRO reviews have an abysmal record of success for one simple reason. Rehashing the facts, even in front of the DRO, doesn’t change why they denied you. If they did something wrong legally, they are not inclined to admit it and will let a VLJ sort it out in D.C. This is the sad truth. Joel also asked if a Vet may bring his own recording gear in and tape the session. As far as I know, it’s legal. They’ll have to run the machine through the bomb checker and make sure you don’t plan on sabotaging the hearing. I got a transcribe (written) record from Ron after the DRO denial in 1990. With the new digital age, I suppose it would be possible to obtain an audio version within a year or so after the denial. VA is really backed up now so you see that dilemma.  What good it would do is my question. It may give you some niche to use in an appeal but it will be part and parcel of the appeal record in D.C. anyway. A written transcript is actually better and they don’t charge for the service. Getting it in a timely manner may prove the problem.  I think it’s an excellent question for an IRIS query.

The jury is out on whether I will win or if my hearing will change things. I am arguing legal tenets after a win, for an effective date of 1994. That is far different that trying to sway a judge into overturning an adverse DRO ruling. My arguments hinge on a simple reading of 38 CFR § 3.156(b). I submitted new evidence and they never made a decision on it. Period. Is my claim still open? Did it die for lack of pursuing it on my part? We’ll soon find out.