I am constantly amazed at finding there are many, many Veterans unaware of the vast wealth of knowledge only a fingertip away from them on the Internet. I get links every day from many of you that lead me to yet to another site with valuable information. Hadit.com and other “big name” sites with a quiet atmosphere are where Vets can delve into VAspeak and separate the wheat from the chaff.
More Veterans come to Hadit.com (and occasionally my site) and repeat the same story over and over. “Gee. I sure wish I’d looked into this more at the beginning. I just got my denial. I don’t get it. How can they deny me? It’s right there in my records.” The common theme is the same. Denial. 85% of you will get that Dear John letter. With the number of filings going up and the subsequent overflow of appeals at the BVA creating a 3-year bow wave into the future, one of the VA’s wishlist of repair orders is to fast track you through the BVA by limiting the admission of new and material evidence and allow a de novo adjudication -actually nothing more than a rehash of your RO denial. Come on. How many of you get the denial letter, file your NOD and then a year to sixteen months later get back a SOC saying exactly the same thing with about 40 cites to 38 CFR, that while they looked at it all, nothing there was enough to change their minds?
That first denial will always be the springboard to success because it essentially tells you why you lost. A denial is that defining poker moment when the dealer flips over his hole card to show 20 and you held at 17. Many of you use a nationally recognized VSO and their service representatives to handle your claims. You soon begin to find out this is far more complicated that it appeared in the beginning. No one is there to tell you about Independent Medical Opinions (IMOs) and the dire need for one. No one is there to consult legally which sometimes backfires when they file for tinnitus in each ear for 20% bilaterally. I actually read one recently where Johnny Vet went all the way to the BVA with his DAV-filed claim for an inevitable denial. .
The interesting thing in all this is the Federal Courts above treat Veterans represented by VSOs as pro se Vets-i.e. Vets with no representation whatsoever. This is both a blessing and a curse. On appeal to the CAVC, most of the judges look at precedence and instantly put on the white kid gloves. This occurs frequently in the Extraordinary Writs arena where many Veterans get a front-row seat and a rude introduction to justice.
A denial at the VARO level allows you much latitude in trying to revise it and get the correct rating. Some claims are never going to be made at that level. I speak of Jetgun claims and Presumptives for Agent Orange extended to Thai Vets. These will never be answered at the local level. The smart guys just file the NOD and ask for a traditional review. This allows time for more IMOs and proper development of the claim(s). Vets usually give me a glazed expression and say why bother. Try to pretend its a reaaaaally long Monopoly game but you own Boardwalk and Park Place. With Hotels. If you build it, they will pay… eventually.
With the 38 CFR §3.103(c) regulation requiring the DRO to “spill the beans” and tell you what you need to win, A DRO review and hearing should be all that is needed to resolve the problem. VA sometimes forgets US Supreme Court Jurisprudence when they deny. It is not expected that the Government shall always win, but that a Veteran shall be accorded due process.
Veterans should not be overwhelmed by a denial. It’s virtually inevitable the way the system is set up. You still read about some Veteran with the Navy Cross and a few OLCs on his Purple Nurple getting denied for PTSD at the Oakland RO. Those are becoming rarer as the VBMS system matures and the M 21 computer is better trained to spot the real malingering Veterans.
Disassemble your denial and categorize each ailment against denial logic. Look for key words such as ‘history’ and how it is used in a sentence. “History” as defined by a Veteran is hearsay and unsupported. “History” as a medical term showing chronicity is what you need. Too many wishfully impart far more meaning into “possible” or “could have” rather than the magic “at least as likely as not”. Why not go back to the doctor and explain how VA has it’s head up it’s collective ass and is using it’s belly for a porthole? Ask him to rewrite it in DickandJanespeak for the sub-100 IQ RVSR at the Regional Office.
After more denials than I can count since 1989 (actually seventeen), I see an eventual win for those with some meat on the claims bone. It may take a number of assaults on the mountain to scale it but every Vet I’ve helped win has always had a legitimate, underlying claim. Time becomes our enemy when we realize we suddenly have a finite amount of it to correct a wrong. Keep that in mind when you stand on the banks of the Notice of Disagreement River and debate diving in.