A very common question asked of me by U.S. Veterans who are seeking disability compensation for injuries and disabilities incurred in military service is this: what is the “de novo” review the VA offers me when I file my Notice of Disagreement, and should I use it?
In all honesty, I cannot think of a scenario where a U.S. Veteran challenging the VA Regional Office’s denial of disability benefits would not request the DRO review.
To understand why I say this, it is helpful to understand the process of challenging the VARO (VA Regional Office) denial of a claim for disability compensation to a US Veteran.
After the veteran’s claim is denied by the VA Regional Office (whether denied partially or entirely, the U.S. Veteran must challenge the decision if he or she wants to continue to pursue the benefit.
To begin the process of challenging the VARO Ratings Decision, the first step is for the Veteran to send the VA Regional Office a written notice of disagreement (also known as a “NOD”). Once the U.S. Veteran files the “NOD” with the VA Regional Office, that office will typically send the Veteran a form that has some language about making an ” appeal election. The VA Regional Office will ask that the Veteran choose between the traditional appeal process or a review by what is called a “Decision Review Officer (which I call the DRO). The VA will give the Veteran 60 days to file the appeal election for with the VARO.
Now, that is the process to get the ball rolling on challenging the VA Ratings Decision. What is the DRO process, how is it different from the BVA, or traditional, appeal, and why do I say it should always be utilized by the Veteran?
First, DROs are senior claims examiners who have the authority to grant the Veteran’s requested benefits, based on the same evidence that was used in the initial ratings decision. The DRO will review the evidence “de novo” (This means, in a nutshell, with fresh eyes and without deference to the initial VA Ratings Decision.)
Second, the DRO is a senior and much more experienced claims representatives with the VA who has probably seen more claims, knows the law better, and whose job is not only to make sure that the Veteran is getting a “non-adversarial” decision, but also to protect the VA from the cost and time of poor decisions from Junior Claims examiners.
Third, the DRO will review the case without deference to the VA Rating Decision. In some situations, the Veteran can ask to meet with or talk to the DRO.
Fourth, the DRO process has a good chance of being successful and if it is successful, it will be a lot faster than appealing to the BVA, where the wait for a hearing can be 500-600 days, or more. I was told at a recent Veterans’ CLE, without any hard evidence to back up the statistic, that 2% of the initial claim denials are reversed by the VA’s DRO process. In the land of the VA, 2% is an incredibly high success ratio (believe it or not).
Fifth, even if the DRO agrees with the Initial Ratings Decision, (or makes a decision that is favorable, but not completely correct) you can still appeal to the BVA. So, the Veteran doesn’t lose the ability to challenge the VA Ratings Decision, has a 2% chance of having the VARO’s decision reversed, often doesn’t have to submit any new documentation, and can at times communicate directly with the DRO. What’s not to like about the DRO process?
Let me give you a good example of success using the DRO process. In a recent appeal I handled for a Vietnam Vet with Post Traumatic Stress Disorder (PTSD), the VA initially denied the Veteran’s claim. The VA’s position was that there was no evidence that the Veteran had been diagnosed with PTSD. This conclusion was absurd: the VA had actually diagnosed the Vet with PTSD, the diagnosis was in his Claims File AND the VA Doctors had already concluded that this Veteran’s PTSD was a direct result of his military service.
On behalf of the Veteran, we sought review by a DRO. Within a couple of months, the Veteran was evaluated by a local VA Medical Center, and was given an impairment rating for his PTSD. About 30 days later, the Veteran received payment of past-due money from the VA, and will continue to receive benefits for his now service-connected PTSD.
Without a DRO, this Veteran would have had to wait at least one or two YEARS to argue to a BVA HearingS Officer that he was entitled to PTSD. Even if the Veteran persuaded the BVA Hearing Official, the claim likely would have just been sent back to the VA Regional Office for an impairment evaluation and further development of the record. This process could have taken years, without netting a single payment to the Veteran.
While the DRO process does not guarantee Veterans that they will win their claim, the DRO process can be a really good chance to get the Veteran the benefits they are entitled to – and usually quicker!
The process works for the VA, because they are able to more efficiently reduce their backlog of claims.
The process works for the BVA Hearings Officer, who only has to resolve the remaining disputes (such as the effective date of an award, or the proper impairment percentage, etc.)
In short, I can’t think of a reason not to request a DRO review of the VARO’s Initial Rating Decision.