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?

[OldJoe]

For that matter when this claim and CUE is finally over.  If the maintainers want to pick pieces out of this post and put it somewhere where it can be used by others as an example and is easy to find, go for it. 

You have my blessing.

[OldJoe]

LOL, I have a feeling that if it is used, there will be a lot more examples of don't than dos that come out of this...

But hey, if it helps another vet or dependent and keeps them for repeating any of the mistakes I made, then it is more than worth it.

[OldJoe]

If someone would proof the following statement to be sure I used the CFRs appropriately, could state anything in a better manner, or if there is a way I can use the C&P exam from the initial claim as further evidence.

Please chime in.

It is probably a bit wordy and should be cut down.  Unfortunately I was never one to explain something in three sentences or less.

***

I respectfully request the VA to call a clear and unmistakable error on part of the October 17, 1996 decision from the St. Louis, MO VARO and to correct it.  This decision was in response to my “official” request for vocational rehabilitation which was acknowledged as being received as of July 31, 1996.  Which happened to be one month after the one-year period for presumptive service connection.

In the decision letter, though I was rated at 10% for other issues, I was denied service-connection for back condition citing one entry made in my SMRs for treatment for lower back pain on September 20, 1990, that the condition responded to treatment, and that “There is no evidence of a chronic back condition in the service”.

Regretfully, I failed to make a timely appeal and this claim became final.

I tried once again to reopen my claim on June 9,1999, but neglected to include any new evidence that would support my claim of my back condition being service connected.  Because of this reason, this became final after the one-year period for an appeal.

During my current appeal for my knees as secondary to my back condition I included several documents to support my claim.  From my SMRs an entry dated March 27,1991 which states that the lower back pain was recurrent and that mild scoliosis was noted. Also, a letter from the VA stating that they had received my application for benefits dated September 1, 1995. But, like my previous attempt to reopen my case back in 1999 I did not provide any “new” evidence to support my claim, such evidence normally this long after exiting the service requires an accompanying nexus letter opining the connection of the current state to the service.  Though I was denied the secondary connection for both knees (appeal for knees still in progress) I was rated ate 40% for my back (degenerative arthritis) with an effective date of August 21, 2015 based solely on this information.

The criteria for claiming a CUE in accordance with title 38 CFR 3.156 (1), (3), and (4) have been met.

If the statement in the original claim of “There is no evidence of a chronic back condition in the service” was meant to cover any other entry that may have existed in my SMRs then 38 CFR 4.6 may have been violated as well.

If the a fore mentioned record, which was a physical part of my SMRs at the time of the original decision, there is reasonable grounds to believe that would have been enough for me to qualify for vocational rehabilitation at that time of that decision which carried the effective date of August 1, 1996. 

I respectfully request that, if the letter asserting that the VA was in possession of my request for benefits dated September 1, 1995 is enough proof that I was within the one-year presumptive period, that my effective date(s) be adjusted accordingly.

Since the initial claim, it is obvious that my condition has obviously worsened.  I would request that I be properly evaluated under those areas relating to spinal issues so as to receive the proper rating(s).

[Buck52]

This looks good to me Old Joe  you did a good Job.

if you can shorten  it some would help b/c  those raters don't like to read ''a lot''  so short as you possibly can but to the point 

and the only reason I suggested to use the Regs ... is to Remind the Rater B/C they some times don't pay any attention what we say   when the Regs are in front of their faces/eyes  it makes them take note and   they think I better read this Veterans claim   he seems to know what he is talking about here  (jmo) or something to this effect.

If you can keep them in paragraphs would be easier to read .

and if you use two or three sheets of paper  number the pages and when your referring to a paragraph  just say something like (see page #2) second paragraph for a specific  part you want to make sure they read.  or high-lite that part with a high-liter

My point is  try to make it easy for the Rater to read...they like that.and what you wrote is not to bad/long  that is fine....

if you write it instead of typing it  make sure you use Dark Ink  So when its copied into the VBMS it will copy good.  they should place it in your C-FILE  so make yourself copies as well for your Records  in case they don't.

This is good you did this.

Quote from your post above

''The criteria for claiming a CUE in accordance with title 38 CFR 3.156 (1), (3), and (4) have been met.''

Right On.

  I did most of my claims  using the Regs.#

Good Job Buddy.

Edited August 30, 2018 by Buck52

[OldJoe]

Thanks,

And here is a shortened version...  Any other suggestions?

****

I respectfully request the VA to call a clear and unmistakable error on part of the October 17, 1996 decision from the St. Louis, MO VARO and to correct it.  This decision was in response to my “official” request for vocational rehabilitation which was acknowledged as being received as of July 31, 1996.

In the decision letter, though I was rated at 10% for other issues, I was denied service-connection for back condition citing one entry made in my SMRs for treatment for lower back pain on September 20, 1990, that the condition responded to treatment, and that “There is no evidence of a chronic back condition in the service”.  I did not appeal and this claim became final.

In June 9, 1999, I resubmitted my claim for vocational rehabilitation, but not include any new evidence that supported the service connection for my back.  Again, this claim became final.

My current claim, for my knees as secondary to my back, is still in the appeals process. As part of the DRO appeal process I included several documents to support my claim.  From my SMRs an entry dated March 27, 1991 which states that the lower back pain was recurrent and that mild scoliosis was noted. A letter from the VA stating that they had received my application for benefits dated September 1, 1995. Like my claim in 1999, I did not technically provide any “new” evidence since this record existed at the time of the initial decision.  Though I was denied the secondary connection for my knees I was rated ate 40% for my back (degenerative arthritis) with an effective date of August 21, 2015 (I do not disagree with this decision).

The criteria for claiming a CUE in accordance with title 38 CFR 3.156 (1), (3), and (4) have been met.  If the record was considered during the initial claim it is an obvious violation of 38 CFR 4.6. It is reasonable to believe that I would have qualified for vocational rehabilitation with an effective date of August 1, 1996 since the rating for scoliosis at the time (and still is), 20%. 

As noted in paragraph 4, I also included the letter from the VA and respectfully request that, if it is enough proof that I was within the one-year period for direct service connection that my effective date for my initial claim be adjusted accordingly as covered within 38 CFR 3.400.

Since the initial claim, it is obvious that my condition has obviously worsened.  I would request that I be properly evaluated under those areas relating to spinal issues so as to receive the proper rating(s).

[OldJoe]

When filing this statement any documents that I should include?