Jim,

After firing the DAV and taking on the liaison with the VA myself, I have run into a slight problem. I was working with a VA Appeals Team member and thought things were working out. Just received a statement of Case (SOC) for most of my claims that were on appeal. It is full of clear errors on the part of whomever put it together. They covered everything except for my original claim from Sept. 2006 for DMII and secondary conditions due to herbicide exposure. I was getting close and had explained why I was going ashore while a Blue Water Navy sailor and it seemed to be accepted. They needed to verify my security clearance level as the job was secondary to my assigned position aboard an Aircraft Carrier. That job was as a courier with classified photo's and reports on the current campaigns that we officially at the time said we were not doing. Classification of these op's seems to preclude my ability to document it. Now the kicker is they want me to decide on what type of BVA hearing I want and recommend I get someone (a VSO) to help with this. I thought after my informal DRO review in March 2012 that I would be given the opportunity to ask for a Formal DRO Hearing and present my case. It seems as if they bypassed that and went straight to the BVA. The other problem is the following comment in my SOC: "Notice of Disagreement received for denial of service connection for diabetes mellitus, type II, skin rash, hypertension; and sleep apnea. These issues will not be addressed as they are on appeal" The NOD was filed on 8/16/2011 or 4/11/2011 depending on which denial they reference. My question is can I request a formal DRO hearing for the appeal of DMII? or should I send in a request to have a formal DRO for all the appeals at one time? Since it has been over 2 years and I' in one of the worst RO's what are my chances of anything in the next 2 years or so?

Reply:

The best suggestion I can offer you is that you ask a veterans law attorney to review your claim. That won't cost you anything up front and it's probably your only chance to prevail. You have challenging claims. I've worked with clandestine ops veterans before and VA is particularly difficult to deal with in these cases.

Even if you were to convince VA that you had set foot on the soil of the RVN, the conditions you're claiming are a bit shaky. The DMII is ceded by VA to be a legitimate agent orange condition but the others, skin rash, hypertension, and sleep apnea aren't associated with agent orange exposure. The "skin rash" would have to have a formal medical diagnosis. VA won't accept "skin rash" as a condition...that's a little like saying "I have an itch". You have to define why there is an itch first.

I've changed my views about personal hearings. I don't believe that a personal hearing is worth much these days. About all that a personal hearing involves is the chance for the veteran to present his or her side of the story. Veterans are often ill equipped to do that and they believe that if they can show the hearing officer how emotional and sincere they are, they have some chance of prevailing on a more personal level. The personal hearing isn't a court of law so you don't get to cross examine anyone and there won't be a lot of Q & A.

Rather than a personal hearing I now believe that the veteran is best served with a legal brief. The brief is simply a statement that thoroughly and accurately spells out the reasons that the veteran must prevail under existing laws. This has a number of advantages. The major advantage is that once you submit a brief, you can be somewhat assured that it will become a part of the record. I've heard from far too many veterans over the years that their hearings had to be repeated because recording equipment didn't function properly, transcriptions were lost and so on. A legal brief also saves you a lot of time. You don't need to travel and wait around for a hearing officer.

Finally, I recommend that you seek a veterans law attorney as a sort of sanity check to ensure that you have a well grounded claim. As I said earlier, some of your claims are not very well grounded. If you can't provide evidence that you set foot on the ground of the RVN, you can try to appeal forever and you probably aren't ever going to win. The conditions you claim that aren't associated with agent orange exposure are difficult to win under the best of circumstances. If a lawyer won't take your case, that's a pretty good sign that you may want to rethink it all.

Please have a look at http://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html