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 you formally filed the CUE under auspices of 38 USC 5109 and made sure you supported it with Legal Evidence.

A CUE claim is separate from a regular claim and needs to be filed that way......the medical evidence must have been established and in VA's possession prior to the alleged CUE.

[OldJoe]

OK, Berta you got me on that one.  I am misusing the term in the legal sense.

Because of the way this whole thing unfolded, and what little knowledge I had at the time this all started, I didn't even know what a CUE was until well into the appeal process when my VSO did me the disservice of filing my claim without me getting a Nexus letter.

This led me to file for DRO review because they could go back and fix previous issues without having to go through the board (and because I was just learning what a CUE actually was).  If the system works like it is supposed (ha, ha, ha) I won't have to go through filing the CUE, because they can correct it.

I know I am hoping against hope, but neither am I holding my breathe.  I fully expect to have to file a formal CUE if they don't fix it.

In short I am jumping through the extra hoops now so if I have to file a CUE I can tell the board I honestly tried to give them the chance to fix it and they didn't.

I have read to many instances in situations paralleling mine where the board simply remanded the case because the VA (on a technicality) wasn't given the chance to rectify it before getting to the board.

[Berta]

If you got some retro with the 40% award (I assume you did) this is the time to try to obtain a IMO/IME- I think you will need one for the secondary knee condition.

"  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)."

If you can scan and attach here the decision regarding the knee disability-we can help more.

If the cardio doctor opined on the knees, what expertise did he have? I assume he did the C & P exam.

You can rebutt that with a better IMO/IME from a real doctor- with more appropriate Expertise, and it needs to follow to IMO/IME criteria here at hadit in the IMO forum.

Many secondaries are obviously due to SCs. Many involve common sense.

VA has no common sense. Their decisions are based on C & P exams.Only a real non VA doctor withexpertise can override their rationale.

 

 

Cover your C file #, name prior to scanning it and attaching it here.

[OldJoe]

Will do on posting the SOC.

I am scheduled for an appointment tomorrow with civilian specialists so I am hoping that will finally go as planned and get a letter.  Or at least get them to commit to one that I can add to my appeal if they cannot deliver it before the form 9 time limit (Sept 5th).

Even though it will be of limited value I am even trying to get my primary care physical to create a letter.

One thing that kind of puzzled me was that I think that the DRO reviewing my claim thought it was all a done deal because several days before they denied my knees they had modified my eBennies to reflect bilateral conditions.  I wondering if the examiner may have stated everything was good to go but they went and sent out the results for independent review and that changed everything.

At this point I have no clue.

With all of the literature out there on scoliosis and its affects, I am feeling good about my chances (admittedly still have to jump through the hoops).

Just wish I knew how far back they were going.  By granting me the 40% simply based on the service records I used to demonstrate the nexus connection, they have all but admitted they messed up. 

I guess that is where I will have to wait and see.  If they say nope, then it is CUE time (will finally be able to take the gloves off).  They have to know that I am sharpening my legal arsenal because my senator's office checked into my claim asking if they had received a CUE (they hadn't, because I hadn't jumped through all of the hoops yet, up until now).  Between that and the evidence I submitted, there isn't much doubt.  But, like I said, guess I have to wait and see there (unless someone knows some secret handshake that will allow me to find out that information).

 

[OldJoe]

Still plan on getting that SOC posted (at least parts of it).  Love how life happens and gets busy when you could use a break.

Guess I am going to just knuckle down and make a few extra hours to squeeze this in.

 

[OldJoe]

Some good(ish) news. 

Just got a deposit in checking for retro back to August 2015 (which means Actually calculated back to Sept?).

Unfortunately I don't know if this is it or if they are still processing it all the way back to 1995/96.  This includes vocational rehab (wish I had the receipts from all the way back then).

If this is it, then I guess this means I get to file the actual CUE paperwork.  The way I spelled it out in the DRO review by requesting retro all the way back (the DRO review has that fairy wand to fix it). 

Up until this point, I don't believe I could really call it a CUE without jumping through some extra hoops.  In part because I didn't know what a CUE was until after I had started this process.

Now, if I can find out if what they have paid is it, then I guess I get to take the kid gloves off.

Granting me 40% for my back now with the same evidence that was available back in 1995/96 without a nexus letter pretty much clinches it (that and what is in black and white from way back then in the original statement).