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 hope I am right about the Cue/38 CFR 4.6 , possible 3.156 , and I based that on what you told us here-I wish others would chime in.

"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." Sure Sounds like CUE to me-

I won a DMII AO death claim that was triggered by my daughter insisting I file the claim,while she was still in the MIL (I had already won my claims at that point and didnt want to deal with them again)and then I found an entry that had been crossed out,in the VA medical records of my dead husband and it suddenly 

became the impetus for me to then file the claim.

VA will ignore or overlook anything they can- We cannot overlook ANYTHING.

I am preparing my 6th CUE  ,a month, against them.They got 3 of them last week.

You stated you were not able" to get anybody to write me a nexus letter for this so I could "officially" reopen the case" I had the same problem - I had to file FTCA against them @ early 1995  ( I won-wrongful death of my husband) and could not find any IMO doctor nor any lawyer to help me. They were not able to advertise on the net- of their specialties-and the net in thse days was far different than it is now.

I had to do all the medical and legal work myself- but was extremely time consuming- then again I didnt have to pay for an IMO or any lawyer.

VA does not have common sense- yes ----many back disabilitites can cause additional disability to the hips, knees, ankles. You could probably find evidence of that by googling how knees are affected by many back disabilities. Use good Medical web sites.

The BVA probably has many claims awarded on the similar secondary nature you have-

A cardio doctor would not know anything about the biomechanics of these issues. You can ask them for a C & P exam from a doctor with the proper expertise- but best of all--- it would take an IMO/IME, that might be costly- not sure- to follow the IMO/IME criteria here at hadit and you would be a lot closer to a proper positive decision on the knees, than you are now-

They owe you retro and a strong IMO/IME might be the best investment you could make with some of that retro.

but maybe however, best to wait for the hard copy decision.

 

 

 

[OldJoe]

Thanks for the advice and sharing your experience Berta.

I had my MRI for my back this morning (trying to work this from several directions at once is draining).

Then visited the DAV with what was going on and that I would be filing a CUE.  His biggest thing was he kept coming back with "but they are going to say that you didn't file a timely claim".  I finally got through to him that, yes, it is true that I did not file a timely claim BUT, the VA did not use all of the medical records at the time of the initial decision.  Then proceeded to point out that the only evidence that I had submitted this time was the entry that they had not used (didn't cite it in their narrative in the original claim) and that the only other evidence was post military, which in terms of filing a claim is about the worst way for doing it because I had no nexus letter.  But, the cardiologist who preformed the C&P said there was a connection.

In short, almost EXACTLY like the example you posted, just change the injury and the dates.  I even had the DAV rep read that decision. 

Then while he was on the phone I pulled out my C-file and went through the original C&P I had for my original claim and pointed out that even the examiner had noted the mild scoliosis, and stated mildly disabling.  I didn't know anything about these entries until after my original VSO did me the disservice of filing the claim before I could get a nexus letter for my knees/back.  Who knows, by him doing that, even though it has caused me more grief than I wish to deal with, he may have done me a favor.

Then I found another little gem in there (every time I go through my C-file, I seem to find a little Eastern egg here and there).  Even though it wasn't part of my claim I did note that about once a month a did I had pain in my right knee.  Granted that day was a good day, so he couldn't find any issues with my knees.

There is even one medical entry in my SMCs where I did report pain in my knee (though it was left knee I think) but there was no evidence of trauma to the knee nor did I no of anything that I could have done to my knee to cause the pain.

[OldJoe]

Got my list of homework from the DAV.  DAV was just going to have me hand write the CUE so we could submit it then and there.  I replied that I would take it home and type it up and bring it with me Friday so we could edit it if need be.

That said, I will be doing a rough draft and posting it here to see what you all think before finalizing it.

Also, I will post stuff from my original claim (sanitized). And try to keep it to only those items that pertain directly to my current claim for my knees and my CUE (don't want to post too much).  Hopefully it can be used as an example of what to look for by other vets and the draft of the CUE statement hopefully serve as an example/template for others.

I know there are other examples of CUEs like mine out there, but admittedly these type of CUEs I don't think are are all that common to get gift wrapped by the VA like this.  But that said, even though it is so obvious I GOT TO MAKE SURE that I DOT all of my I's and cross all of my T's.  The VA gets away with lying, cheating, and ignoring the laws but they hold us vets and dependents (like you Berta) to a much higher standard (non-adversarial my sweet glutie-maximous).

Also, I love how I file information on my dependents but as soon as they think the claim is done, if you don't make the 30% criteria, they toss the information.  No offense, but that is something that should be retained in instances where the vet gets a rating increase.

Well, tonight is going to be busy...

To think, I thought I was finished with homework when I graduated college...

[OldJoe]

I am assuming this is a good document to reference while writing my CUE?

 

m21-1mriii_iv_2_secb.docx

Edited August 28, 2018 by OldJoe
inserted document in wrong place

[spearhead91]

Oldjoe here you go link to M21 and CUE section:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015808/M21-1,-Part-III,-Subpart-iv,-Chapter-2,-Section-B---Revision-of-Decisions

"(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply."

For CUE From: https://www.ecfr.gov/cgi-bin/text-idx?SID=57ba4c6051d1bfc3fec251edaaf94169&mc=true&node=se38.1.3_1105&rgn=div8

I need to do one myself or two. Never done. 

EDIT:  I'm sure there are some samples here as a framework to go by. Under TOPIC CUE and maybe your situation. 

Edited August 28, 2018 by spearhead91

[spearhead91]

On page 4 Berta posted one she did, correct me if I'm wrong elders: