When the DRO refuses to listen to your evidence, what can you do?

Have you had a DRO Hearing with a DRO Hearing Officer, and looked up only to seen an unfriendly face on the other side of the table?

One of my clients experienced this at a recent DRO Hearing in Waco, Texas.  Usually, the Waco DROs are exceptional - they come well prepared, know the case, and are willing to have an in-depth discussion of what facts are in the file, which are missing, and what is needed.

This time, though, we were confronted by long-time DRO Evangelina Suarez, who from the word "go", talked to my client and I like we were children, and repeatedly made smug and disdainful comments about the case and the legal arguments we posited.

Throw on top of that the fact that Ms. Suarez knew less about what was in the C-File  than I know what was in a McDonald's cheeseburger, and you have a recipe for disaster.

Most Veterans, when faced by a situation like this, resort to one of 2 options (and perhaps Ms. Suarez knows this)

Option 1: Bark about the VA's moral duty to take care of Veterans

Option 2: Give up.

If you are faced with a DRO, I want you to know about a third option.

Option 3 starts from the idea that a DRO Hearing Officer (again, 99% of them are well-prepared and know their stuff) has at least 2 obligations.

1) All hearing officers (DROs included) at the VA Regional Office have the duty to explain fully the issues in the claim to the Veteran.  

This means more than reading a rote script off a scrap of paper, or a disdainful comment about what a "claim" is.    If you don't understand the issues, ask the DRO to explain them again. Repeat back what you understand the issues to be, and ask the DRO on the record whether or not you stated them correctly.

You don't have to be an ass (it's hard, yes, but rarely will that help your case). You should  be persistent and demand that the DRO explain the issues to you until you understand them.

When you understand the issues in your claim, you will have More Power to find a more satisfactory resolution to your claim.

I have long believed that 2 of the most important elements of changing your experience in the VA Claims Process start with a) Knowing what is in your claims file, and b) Understanding what the legal issues in your claim(s) are.  Keep asking questions until you understand - not until the DRO is tired of reading a rehearsed script to you.

2) All Hearing Officers (DROs Included) at the VA Regional Office have the duty to suggest the submission of evidence that may have been overlooked.

This is particularly important when the evidence that may have been overlooked would be of advantage to a Veteran (or survivor/dependent's) position.

So how many of you have been at a DRO or other appeal hearing and the hearing officer has told you that the VA has already told you everything that you need to know about how to prove up your claim in that crappy VCAA "Duty to Assist" Form Letter that the VA mails out in just about every type of case imaginable?

Is that enough to fulfill the DRO's second duty to suggest submission of evidence that MAY have been overlooked?  I don't think so, and the case law seems to support my position.

So, ask the DRO -- on the record -- to suggest to you the evidence that may have been overlooked that you should submit to support your claim.  Confirm their answer - as clearly and objectively as possible - on the record.

Again, be civil, but be persistent. An old friend of mine used to say: "Be Dynamic and Demanding, but not a Jerk."  That's a good mantra to recite over and over before your DRO hearing.

By the way, these 2 duties used to apply to BVA hearings as well, but the VA didn't like the rules of the game, so they tried to change them.  In 2011, the VA tried to re-write the rule to say that  BVA Judges don't have to comply with the duties described above.  38 CFR. §3.103(c).  Now, the VA is arguing that BVA judges don't have the above duties, although I'm not aware of a clear holding supporting the VA's arguments.

In any event, this is not the case - the BVA has these duties as well!

(Kinda makes you want to become the VA Secretary - what rules do you not like that  you'd rewrite? )

I've completed and published a   Case Study which takes an in-depth look at what one Veteran (a Vietnam era veteran exposed to Agent Orange on/near the Korean DMZ) did when the DRO told him that a particular issue he came to the hearing to discuss was not on appeal due to a technical glitch - or human error - in the VA's computer system (VACOLS).

Get your copy of the Case Study by clicking on the link below.

When the DRO throws you a Curve Ball,
Do you know how to get your appeal Back on Track?

DRO Case Study Series #1


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