Once the NOD is filed, a claimant may request that his rating decision be reviewed by a senior VA employee known as a Decision Review Officer, or DRO. The review of a DRO is de novo. It is important to remember that the DRO process is optional and is available for any rating decision where less than the full benefit has been awarded.
If the claimant does not elect the DRO, his case will proceed as a traditional appeal. There is a window of opportunity for electing the DRO. It is recommended that if the claimant wishes DRO review, he should request it in his NOD. Otherwise, VA will send the claimant an election letter, advising him of the option for DRO review and affording him 60 days to make an election. If the claimant does nothing within the 60-day period, the appeal will automatically proceed as a traditional appeal.
The traditional appeal process involves the issuance of a Statement of the Case and a substantive appeal to the BVA.
If the DRO has been selected he or she will review the evidence and applicable laws de novo and make a new decision. The DRO should not give deference to the previous rating decision. The DRO also has the authority to order additional development, conduct a hearing, if requested, or hold an informal conference. See 38 C.F.R. § 3.2600(a).
The DRO cannot overturn the favorable portion of the previous rating decision, unless the favorable portion of the prior decision contained clear and unmistakable error (“CUE”). Under the CAVC’s jurisprudence, evidence that is “clear and unmistakable” must be undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).
Limitations on the DRO
The DRO cannot “bargain” with the claimant. The VA adjudications manual states in relevant part:
A DRO cannot make a bargain with an appellant or his/her representative by requesting or requiring him/her to withdraw a claim or take any action in exchange for the granting of any benefit.
Manual M21-1MR, Part I, 5.C.12.h.
Note: The DRO’s know the people from the rating team. They generally will not overturn their colleague unless you give them something different to form the basis of a new decision. We recommend additional development of evidence and argument at the DRO stage.
The DRO Hearing
Some attorneys view the hearing as an important strategic tool in personalizing the claim before the VA adjudicators. It provides the VA adjudicators with an in-person opportunity to assess the claimant’s credibility. In practice, however, if any aspect of the claim is predicated on the credibility of a claimant (absent a combat veteran situation under 38 U.S.C. § 1154(b)), then as a practitioner you must be realistic about the chances of success. The VA does not like to grant claims based solely on veteran’s lay statements.
If the claimant wishes a hearing, then it should be done after the initial rating decision but before the Substantive Appeal (VA Form 9) is filed.
The VA hearings are informal, and take place in a non-descript room with microphones and a tape recorder. The decision maker, the claimant, his representative and any witnesses are usually the only ones allowed into the room. Others may be present upon consent of the claimant. The DRO generally does not ask too many questions, but he/she has a duty to explain the law or suggest the introduction of missing evidence. See 38 C.F.R. § 3.103(c).
The Statement of the Case
The next step in the process after the NOD and DRO review is the VA’s issuance of a Statement of the Case (“SOC”). Unless the disagreement is resolved in the claimant’s favor, the VA must issue an SOC. When the VA sends the SOC it is accompanied by information as to how to file a Substantive Appeal.
The SOC is intended to afford the claimant with an understanding of the reasons for the VA’s decision. The idea is that a detailed understanding of the basis for the prior denial will assist the claimant in preparing his Substantive Appeal. In essence, the SOC is a readjudication of the claim.
According to the 2011 Fiscal Year report of the Chairman of the Board of Veterans Appeals, it takes an average of 257 days after the NOD is filed for the VA to issue the SOC.
The SOC is often many pages of boilerplate law and regulations. The SOC is required to include a summary of the applicable laws and regulations, as well as a summary of the evidence. The SOC should include an application of the laws to the facts.
The SOC should be compared with the evidence of record. It’s not always accurate.