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]

You might have a 38 CFR 3.156 situation-

meaning the VA might have considered your claim in 95/96 as "not well grounded" and failed to even get your STRs.Or they did get your STRs but never considered the specific entry you cited here.

Lots of discussion under a search, of 38 CFR. 3.156 (a)(b) (c) ---here is a winner:

https://community.hadit.com/topic/52994-cue-in-failing-to-apply-the-provisions-of-38-cfr-§-3156c-for-effective-date/

o

 

[OldJoe]

OK, just got off the line with DAV in St Louis.  Looks like what the VA gave me is all they want to fess up so far.

Now it looks like I take the next legal step in fighting this.

Anything I need to do before I can go and call a CUE a CUE?

[OldJoe]

LOL, thanks Berta, we posted at the same time.

Just, scanned/skimmed the link...

ROTFLMAO, sounds almost exactly what has happened to me.  Can we write a better made for TV soap opera?

Will have to read through it thoroughly to be sure.

But it does seem (at first glance) to be an exact parallel of what I am going through.

[OldJoe]

11 minutes ago, Berta said:

You might have a 38 CFR 3.156 situation-

meaning the VA might have considered your claim in 95/96 as "not well grounded" and failed to even get your STRs.Or they did get your STRs but never considered the specific entry you cited here. 

Lots of discussion under a search, of 38 CFR. 3.156 (a)(b) (c) ---here is a winner:

https://community.hadit.com/topic/52994-cue-in-failing-to-apply-the-provisions-of-38-cfr-§-3156c-for-effective-date/

o

 

" Or they did get your STRs but never considered the specific entry you cited here."

BINGO, AMEN, ...

That is exactly what happened.

[Berta]

That would be a violation of 38 CFR 4.6. (my favorite regulation)

https://www.hadit.com/power-38-cfr-4-6/

STRs are evidence and they have to be" thoroughly and conscientiuously studied."

They are obviously an "element" that can affect the " probative value" of any claim.

Often they are the Prime element.

I think you got them good----

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

[OldJoe]

Thanks Berta, I really could almost cry after reading that.

The original decision specifically notes the followup appointment to the initial injury date, that I appeared to have no further issues, and that they could not find any other record in my SMCs that would connect my claim as being service connected.

My DRO review, as part of my evidence to claim my knees as secondary in nature as the entry from my medical record with a later date that stated that the issue was recurrent and that they noted mild scoliosis (rating criteria simply states scoliosis and lists it as 20%).

They granted me 40% based simply on the evidence I provided. 

Granted provided bunches of civilian records from after I left the service, but I know that doesn't mean a hill of beans unless you provide a nexus letter and use that as supporting evidence of continued problems.

Only thing that gets me now is that with all of the literature out there connecting back and knee issues especially with scoliosis.  How could they have nt awarded me the secondary too.

The only thing that I can possibly think of (probably over thinking this since this is the VA we are talking about) is that since I didn't have the back "service connected" at the time of the C&P the Dr. used that as the basis of not denying it and not finding a service connection.

Edited August 27, 2018 by OldJoe
mistake