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Confused (sort of) about DAV Unofficial Notification

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OldJoe

Question

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?

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I will work on the CUE statement and get it posted as soon as I can.  My brain is about fried right now.

Also, the pause will give everyone a chance to digest what I have posted and tell me where my error is in my thinking if there is one (I know using CUE is a last ditch effort).

I did try to reopen my claim in 1999 but silly me, not having a clue what I was doing didn't realize that I needed "new evidence" to support my claim linking it to the military, not simply more post service medical records (thought it would show continuity).  With that claim I didn't appeal, because I had no idea how to appeal it when the VA was in possession of all the pertinent service medical records.  Silly me, I thought they would look through them and find the one record that would prove I was right...

Right now the rough outline I have spinning in my head is that I need to state that even though I did fail to make a timely appeal on either attempt I was awarded I was granted service connection without having to provide a nexus letter in my current claim for my knees.  The nexus letter being necessary and thus the standard by which most claims made many years after a previous claim for the same condition had been previously denied and had become final.  This is needed because new evidence must be presented that would clearly establish that the claim should be reopened.  Pursuant to regulations and code an example of what constitutes a CUE is a service medical record which was available at the time of the initial decision had not been taken into consideration that would have otherwise resulted in a completely different outcome.  This has clearly been demonstrated by the current decision to grant me my current 40% and demonstrates that the condition has also deteriorated over this period of time which should necessitate the reevaluation of all criteria which was originally used at the time of the original examination to render the condition of my physical condition back then.  If the statements in the original narrative that they couldn't find any record that would confirm that there was a chronic condition then these statements run contrary to the codes and regulations stipulating that all medical records should be properly considered.

 

The above shouldn't be considered anything more than meandering ramble of stuff that should be included, not what should be actually stated/written.  That said if; I have left anything out that I should include,  I need to be particularly careful of how I state any of what I have said, or if there is something I said so totally wrong it is an instant failure, please chime in.

 

OK, my brain is at its limit today and has gone on strike. 

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  • HadIt.com Elder

Old Joe

Sounds like you got it down pretty good, you might look up the regulations and insert where appropriate .

just my opinion it looks ok to me.

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Thanks Buck52 will do.

Brain was about fried, but couldn't help but jot down the rough outline dealing with what needed to be said.

I would suggest that anyone going through something like this, if they have to write a statement is to jot down a very rough outline/draft of what you are going to need to write and ask for input.

Then come back and post a more "refined version" for per review and post any "cleaned/sanitized" excerpts that support your statement.

Also, post any excerpts that may be used to refute your claim.  The kind people on this forum are not legal people and can only share their experiences of what did/didn't work for them in their own particular situation.  They cannot share their experiences accurately if they cannot get a sense of what the "whole picture" entails (good and bad).

 

That said, I don't think the maintainers of this site would appreciate someone posting a sanitize copy of their C-file.  Lord knows I have probably come close to abusing that myself over the entirety of the claim.  If the future, unless requested by other members, I will endeavor to only type excerpts from my records and not post the scanned images (though admittedly posting a picture is easy and reduces the chance of transcribing errors, not to mention some Dr.s hand writing is nearly impossible to read.)

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Sorry, OCD/A-type like tendencies kicking in here:

Since I am being very "proactive" in trying to do all this before "official documents" arrive in my mailbox (the denial has of course); I just to be sure I don't state something in a way that will come back to haunt me later when I submit this CUE this coming Friday.

I my case where it appears that there is not mention by the Dr. that denied my knees that he opined an that my back was service connected.  Will the VA send my a letter stating/explaining the granting of the service connection for my back.

Granted it seems obvious, but since the legal system works with only that which is black and white, and the VA raters, couldn't find their own glutey without detailed explanations and much assistance.  But as life has consistently demonstrated, the "devil is in the details".

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Great start OldJoe, looks like the medics go to same school for hand writing in records. I swear some of my entries look almost like the same hand writing but were different branches. Go figure.  ((Sample: WHY WERE MEDICS NOT REQUIRED TO DO ALL CAPS AND BLOCK LETTERS??? So they could be read clearly???)) I have one note for ab....... s.......... and long wavy lines which I had to scratch my head and look at dates. Oh that was a jump injury or heavy strain from the amount of equipment that I went to be seen for: abdominal strain.

I have to learn to stay focused and take one contention at a time and/or abandon some I don't like that I idea though. So for me it would be to start with the hardest the increase first from 20% to 40% and work on the secondaries in the NOD and CUE is an item by itself from first claim I'll do that last.  Stay on one point write draft, re-write add in Regulation if known as Buck52 suggested that's the hard part for me especially the functional loss and that 38 CFR 4.40 and 4.45 was considered blah blah and not warranted. I have pain, weakeness, lack of endurance and flare ups. I tell my DR can only walk this much, sit so much, stand so much, repetitive use? 3 times is not enough. For my one knee first went ok, second was less and third was worse. But C&P done by outside contractor so can't see what they put down.  I wear a brace, given crutches for a recent ding on it, and now a cane. How does equate into overall picture for functional loss?

I don't mean to over write on your thread OldJoe I come back and snip what I wrote to use later so kind of brainstorming repository. No jokes. 

 

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Spearhead91 don't sweat it, every little bit you share helps (both of us).

I have been diagnosed with adult ADHD, so I very well understand the issue with having to stay on topic and focus.  Also, sharing your frustration is part of what goes on here in the forums (helps to get it out).

I don't consider you as "over writing" on my thread, but do appreciate brainstorming more than you know.

Who knows maybe something you say might spark a critical memory or though with someone else which winds up helping everyone.

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