Confused (sort of) about DAV Unofficial Notification

[OldJoe]

Got an unofficial notification from the DAV about my DRO appeal stating that they were giving me an earlier date for my tinnitus (that baffled me) and that they were granting me 40% for my back (degenerative arthritis).  My appeal was for secondary service connection for my knees, there was nothing about my knees in the "unofficial notification".

So I went to the closest regional off and was finally seen.  They looked up the "official" notification (SOC) from the VA and it stated nothing about my back but stated that they had denied me my secondary claim on my knees stating that the Dr couldn't find anything to connect my claim to either my back or the service (um, always thought knees went when back went, so secondary was almost a given, then again he did specialize in cardiology).

In someways I am not that surprised, but I am wondering about the "unofficial" notice both the "unofficial" and "official" where dated the same (July 5th) I cannot believe in a matter of a few moments the VA totally changed their decision.  So that has got me flummoxed.

What makes this unique is that if the 40% for my back was based on the one medical entry that they didn't use for my initial claim back in 95/96.  I was never able to get anybody to write me a nexus letter for this so I could "officially" reopen the case.  If the "unofficial" letter holds true and I am just waiting on other paperwork to be finalized then they have all but argued CUE and handed me a win without even trying (I know the VA will never give up that easily).  The entry stated scoliosis and that it was a recurring issue, their determination was based on an earlier entry and stated in black and white they could not find any other entries.  Can you say "gotchya"?

Getting a letter now for my knees should be easier since I have some indication that the VA does ("did") give some indication that they felt that my evidence did indicate connection to the service concerning my back.

Can anyone possibly clue me into what might be going on?  Did the DAV totally get it wrong?  Or, is this just part of the whole overall process and I am only seeing part of it?

[Berta]

I went over this entire thread:

"So I went to the closest regional off and was finally seen.  They looked up the "official" notification (SOC) from the VA and it stated nothing about my back but stated that they had denied me my secondary claim on my knees stating that the Dr couldn't find anything to connect my claim to either my back or the service (um, always thought knees went when back went, so secondary was almost a given, then again he did specialize in cardiology)."

and 

"Getting a letter now for my knees should be easier since I have some indication that the VA does ("did") give some indication that they felt that my evidence did indicate connection to the service concerning my back."

An IMO/IME might have helped. I dont  see this as a basis for CUE .Was the CUE about something else?

38 CFR 4.6 certainly states the VA must consider all 'probative' evidence, 

but they can easiy breeze over SMRs, and even if you sent them the actual highlighted copies of the SMRs that support your claim-

secondaries ,even if obvious, almost always need an IMO/IME that establishes the nexus based on SMRs and all available medical records. A strong IMO/IME , as New and Material evidence, can re-open a claim.

Edited October 31, 2018 by Berta
added more

[OldJoe]

I must vigorously agree, an IME/IMO would have made things much easier. 

The CUE is for my back.  My knees are another ongoing saga due to the way I strategized this claim.  If I had been able to get my knees granted I was going to go back for my back during the appeal process.  It sounded like a sound strategy in my head because of the requirements for claiming CUE for my back from the get go.  But as we know plans don't survive initial contact (mine fell apart when my first VSO filed my claim before I could get the IME/IMO for my knees)

If there is anything to be learned from this whole ordeal is the importance to have your ducks in a row before you even start.  Unfortunately hindsight is 20/20 and cannot change it now.

While waiting for the obvious outcome for my claim to be denied because I didn't have the IME/IMO I continued to review and research everything I could about ratings, my service medical records, and the appeals process.  It seemed as though every time I reviewed my records I kept finding things to help me build my case for a CUE and while kept further understanding all the twists\turns of title 38 CFR 3.156 (1), (3), and (4); and the STRINGENT requirements that are needed to prove a CUE. 

For the DRO process, I purposefully worded everything in order to provide the VA the ability to recognize the fact that they had made a mistake in the original claim and that I wanted it fixed.  At this point the CUE was already identified and laid out before them.  The only thing I didn't come right out and state that it was a CUE. I did this purposefully so that if it failed and went to the board I wouldn't be told that because of how I worded my claim it wasn't really a CUE yet and get it remanded back to the regional office where it would languish for an untold period of time (I have read to many instances where this happened).  This is where they granted me the 40% for my back.  Granted this isn't a CUE, but it does underline the fact that they did make a mistake.  The only difference between this and prior claims was that I pointed to a specific medical entry (explicitly mentioned in title 35 as one of the key elements for proving a CUE).

So right now, I kind of have them between a rock, a hard spot, and standing under a 40 ton ACME safe.  How can you not call it a CUE when you used that one record as the nexus for my 40%?  The big kicker is that IT DID EXIST during my initial evaluation, so beside the usage of it as the nexus for the 40% it meets the criteria for records that were not used to evaluate the rating but were available.  To further drive another nail to finish the argument for CUE is the fact that the SMC entry states that it was a recurrent issue and that there was mild scoliosis present, an automatic 20% rating (severity of scoliosis does not matter it is 20% period, unfortunately it cannot be stacked).  The final nail to drive home (that I just recently found) is in my SMR is the little phrase about the service member having no prior record of having any back problems, this takes care of the old counter of scoliosis being a genetic condition.

But of course the VA, being the vile foul beast it is, when backed into a corner has go to hiss and spit at least one last time.

[OldJoe]

I will admit this has been a weird claim the way it has unfolded.

A couple of fun facts (well, maybe not so fun but in the future I might be able to laugh about it).

I have finally gotten IMO's for my back and knees.  After all of this I finally found someone who would write me something based on the evidence.

My back based on the mountain of evidence going all the way back to the military and what I did.  Unfortunately, this is kind of necessary now, but better late than never.

For my knees based on what I did in the military and a diagnosis I received from my original C&P examination for bilateral arthalgia of the knees. Basically all this did was restate the obvious, but it is a letter.

[OldJoe]

I am going to file a NOD to start with for the CUE.  Unless, since it is such an obvious CUE going the other route of filing a CUE on the CUE will work.

This all brings up another thing that could affect the claim for my knees.

As part of my CUE claim I did bring up that I had received a letter stating that they were in possession of my request for benefits and would process my claim as fast as they could due to the backlog.  This letter was dated September of 1995, three (3) months after I had left the service.

The explanation for my original (very first claim) stated I had missed the one year presumptive service connection, vocational rehab request dated as being received as of 31 July 1996.  This is very coincidental because the one year period just happened to be June 30th.  (But we all know rubber stamps don't lie and cannot be adjusted, though for some reason there are a lot of other dates of 11 July 1996 stamped throughout my VA C-file, and there is this little note stating "training claim", does anyone smell something fishy here?)

Now if this letter is enough evidence that my effective date should have been the day after I left the service then my knees should, if I am not mistaken, fall within the one year presumptive period. Thereby making this whole appeals process a pointless, but unfortunately necessary bit, because we all know the VA is such a nice group of people to work with.

[OldJoe]

So, based on my last post I now have some new questions.

IF they grant me an even earlier effective date because of the letter that falls into the presumptive period how does this affect my knees?    Is arthalgia of the knees even rateble?

This is cloak and dagger conspiracy stuff here so take this with a grain of salt because I don't think this is at all provable. Does anybody know the VA process for "training claims" and if "stamping dates" (like they were checking out a library book) was a way they kept track of paperwork?  If so, does this mean they were handling my claim before they "officially acknowledge" as having received my vocational rehab request?

The stamps I am referring to are stamps of July 10, 1996.

But then again there are a bunch of date stamps I am not sure of.  So this could be nothing, just business as usual.  Would need a lot of proof to prove this little conspiracy theory...

Date from letter stating that they were in possession of my claim for benefits (I was discharged in June of 1995).

[OldJoe]

Got the official notification.  They so obviously didn't read anything I wrote, just a flat out denial.

Both DAV representatives were kind of dumb founded, all the evidence was right there and everything plainly spelled out and regs properly cited.

Of course we submitted a new "NOD".  But in reality is now calling CUE on the original decision since they obviously cann't read.  The funny part is the DAV rep to my original NOD, and simply whited out the date and put the current date in the box and filled out the "cover sheet" that summarizes my "official" NOD.  Then resubmitted everything.

He stated this may just have to be one of those thing that needs to go before a board to win since the VA doesn't like to admit to a CUE.

Here is the VA's reply:

Everything else is just their boiler plate basically stating that their decision was right based on the evidence at the time and since I missed the original deadline, I am S.O.L.