Favorable Findings Identified in a Rating Decision

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dwbell99

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If a rating decision lists in "Favorable finding identified in this decision " that "... opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)", then doesn't this mean the Rating Decision awards secondary service connection?

M21-1, III, iv, 2, B, 5 - Favorable Findings states:
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III.iv.2.B.5.a. Definition: Favorable Finding
As stated in 38 CFR 3.104(c), a favorable finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
Reference: For more information on findings of fact and conclusions of law, see M21-1, Part III, Subpart iv, 5.A.1.c.

38 CFR § 3.104 Binding nature of decisions.

(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans' Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.

(b) Binding administrative determinations. Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.

(c) Favorable findings. Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans' Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
[29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. 18, 2019]

M21-1, Part III, Subpart iv, 5.A.1.c Definitions: Findings of Fact and Conclusions of Law

Findings of fact are the true facts that a decision maker finds to exist after the analysis of all evidence of record. Findings of fact are necessary to making the conclusions of law.

Conclusions of law are the ultimate determinations made regarding whether key governing substantive and/or procedural legal requirements defined by the claim are proven. Every legal conclusion depends on finding certain facts.
 

gsfowler

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If that is what you believe that it reads, why are you posting it up here and not asking for a higher level review and/or a rating decision hearing?
 

dwbell99

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I am posting here to get opinions from other Veterans (I thought that the purpose of this forum is for Vet to help other Bets) and leave information in case there are other that this will assist.

I did find that if VA finds that the evidence is both competent and credible, then it is favorable to the veteran. Under the Legacy appeals system, such favorable findings are not binding. Namely, if the Regional Office makes a favorable finding, the Board can still decide it is not favorable upon its de novo (i.e. new look) review. However, under the new appeals system, favorable findings are binding on the rest of VA going forward. Therefore, the Board cannot reverse any favorable findings of fact the Regional Office made.
 

RonG

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If that is what you believe that it reads, why are you posting it up here and not asking for a higher level review and/or a rating decision hearing?
I agree with your analysis.

There were 31 posts on another board with the same subject during October...same OP as well. The thread was closed and the subject then arose here.

Ron
 

gsfowler

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I am posting here to get opinions from other Veterans (I thought that the purpose of this forum is for Vet to help other Bets) and leave information in case there are other that this will assist.

I did find that if VA finds that the evidence is both competent and credible, then it is favorable to the veteran. Under the Legacy appeals system, such favorable findings are not binding. Namely, if the Regional Office makes a favorable finding, the Board can still decide it is not favorable upon its de novo (i.e. new look) review. However, under the new appeals system, favorable findings are binding on the rest of VA going forward. Therefore, the Board cannot reverse any favorable findings of fact the Regional Office made.

You do not quite grasp what a favorable finding is...

There are three requirements for service connection: 1.) an in service event, 2.) a diagnosed illness/disability, 3.) a current compensable disability. If you have all three you get service connected. If you do not, you will not be service connected and the VA will tell you why you were not, and the favorable finding will tell you which of the three you have.

A favorable finding is not a decision per se. When I deny a claim, I an required to give a favorable finding. There is a simple drop down menu to choose from and that gets supplemented with some free text. An example of a favorable finding would be this:

Favorable findings included in this decision:

You have been diagnosed with a disability. Private medical evidence shows a diagnosis of degenerative disk disease.

>>>

See what I did there? I addressed one of the three requirements for service connection. The requirement was that you have to have a current disability.

Based upon the narrative You provided last month, your private DBQ [did no favors for] you because although the provider opined that it was as least likely than not that your current service connected ankle condition could be the cause of your DDD and associated sciatica, the provider failed to demonstrate that you actually suffer from a abnormal gait.

At this point you can either request a hearing with a decision review officer, or you can file a supplement to your denied claim with new and material evidence. The ball is in your court.

Here is a pro-tip for you. The examination that you provided (private DBQ) was inadequate and needs to be corrected. If the provider truly believes that your ankle is causing the back condition, then he/she should have stated the type of abnormal gait that you have and how it contributes. This would carry much more weight if there is some sort of supporting medical evidence that is in your current VA and/or private treatment records.

You can provide those records to the VA, however they are going to request you complete a 21-4142a to develop for those records independently.
 

RonG

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Questions answered; thread closed. RonG
 
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