What is De Novo Review? Who gets it? Why did they get it and I didn’t? How many times do I get it? Is it automatic? When does it happen? All these queshuns and you are in the dark. Your VSO service rep is clueless. What to do? Who to ask? I get bombarded by this one as much as remand questions. Relax. We’re on it.
adverb & adjective
1.starting from the beginning; anew.
The First de novo Review
In the beginning, you file your claim. The VA denies. You now file a Notice of Disagreement (NOD). VA mulls your NOD over and gives it the de novo review (#1) by a higher authority than the original rater. The senior rater, in most cases, copies and pastes the new denial into the Statement of the Case (SOC). S/he includes all the pertinent statutes and regulation into the SOC so you’ll understand where you came up short. That is your first de novo review.
If you asked for a DRO review instead of a traditional appeals path (above), a Decision Review Officer would perform the de novo review. Absent any new evidence or your missing Independent Medical Opinion (IMO), you’re heading towards a de novo denial (#2).
Your next (#3) de novo review will come at the Board of Veterans Appeals. Your claim arrives and the Veterans Law Judge (VLJ) takes a gander at it with his/her staff attorney(s) and discover no SSI/SSD records. This would be grounds to send it back to the Regional Office(RO) to fix. In the process, the RO would be required to repair it and perform yet another de novo review (potentially #3) to see if the repair “fixed” the denial problem. If it doesn’t, the RO is required to send it back to the BVA, this time accompanied by a Supplemental Statement of the Case (SSOC) yet again claiming it was de novo‘d and found wanting. That’s four possible de novos so far. Should your appeal be in order, a de novo denial at the BVA would normally be #3.
Back at the BVA after a remand, the VLJ again picks up where he left off. This is potentially de novo #5 and a win or loss. Unfortunately, because VA is so slipshod and flaky, it could be the appeal has to be remanded any number of times. Perhaps the VA examiner just couldn’t bring themselves to admit the truth. Perhaps they kept using the word “speculative” and made no decision up or down. After a couple of these the VLJ becomes vexed and uses a sharper form of wit to convey his/her displeasure. Eventually, it returns. This could drive the number of de novo reviews up to eight or nine. I’ve seen some fester through ten remands-each with its own de novo review.
In the event no remands were required up to now, a de novo review at the Court of Vet. Appeals would be #4.
When, and if, you choose to appeal a denial from the BVA to the Court of Vet Appeals (CAVC), the Court will perform a real de novo review (#4) that is far more in depth. This often results in a vacate and de novo review below to the BVA to fix. Alternately, the Court can set the decision aside and remand for a new hanging absent the shortcomings. Should the Vet’s Court deny, the Veteran has the option of appealing to the Federal Circuit. Again, here’s another shot at de novo justice (#5). Obviously, the path to #6 lies at the U.S. Supreme Court.
The concept of de novo review is to get a fresh set of eyes on a claim and a new, enlightened perspective. In the jaded context of VA de novo review, it means coming up with a new denial that will hold judicial water. When the BVA or the Court has had enough of this posturing and delay, they vacate with instructions as to how the new de novo review will read and how the BVA VLJ or lowly DRO rater will write and phrase his/her next de novo review. Sometimes the VLJ will become anally specific and spell it out for the DRO-i.e. “Please state whether is is at least as likely as not that the __________ is related to military service and why. If not, please fill out a SSOC and return it to me.”
Should the Court reverse the BVA’s VLJ, that, too, will be returned to the BVA for the VLJ to don sackcloth and anoint his/her head with ashes. They then perform a de novo grant. It goes back to the RO and a shiny new rating is effected there. The BVA doesn’t do ratings. They do appeals with a simple yes or no.
A New Set of De Novo Reviews
Obviously, the de novo review can commence anew when the RO low balls your new rating and you have to file a new NOD. Do not worry. You’ll be entitled to a new wave of de novo reviews all over again. It’s called VA déjà vu de novo and you’ll be pretty familiar with it by then. We Veterans have nicknamed it the Hamster wheel.
In theory, you could have an innumerable number of de novo reviews. You are only limited by VA’s stupidity, your imagination and fervor for filing claims and appeals. I’ve had seventeen that I can count since 1989. Perhaps there were more behind closed doors. In any case, a de novo review is often window dressing in many cases. If the local RO is dead set on a denial, a de novo review is a fig newton of the imagination. It occurs on paper for legality.
True de novo review comes when you are assigned a VLJ or CAVC /Fed. Cir. judge with an open mind and a nonadversarial attitude. Face it. Some of these folks flat out don’t cotton to disabled Veterans and view us as malingering malcontents in search of a handout or VA welfare. Winning is virtually impossible in these circumstances. Perseverance and time will win out because some of us outlast the VLJs and RO pukes who have caused our misfortune. I’ve gone through about five or six VA bosses at the VA since 1989. I watched J.F. Wallace rise from the guy who approved my VA loan in 1976 to the DRO who denied my claims in 1989. In 1995, he wrote my SOC for Hepatitis. In 2008, I noted he was the Veterans Service Center Manager who signed off on my 100% for Hep.
Every de novo review is another bite at the apple, but not every new bite of the apple generates a de novo review. You have to appeal to get it.