VA CUE Request

[melonbread]

I submitted new claims back in March 2016 and received partial decision for 30% increase for post traumatic vertigo as secondary to my 40% TBI. I was waiting on my ear and tinnitus claim to be completed and as those two claims closed out I received a notice to retract my previous partial rating of 30% increase for post traumatic vertigo. I'm little lost of what I should do and seeking advice from you all.

Whether the evaluation assigned for post traumatic vertigo was clearly and unmistakably erroneous.

Clear and unmistakable errors are errors that are debatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. a determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. once a determination is made that there was  a clear and unmistakable error in a prior decision that would change the outcome, then  that decision must be revised to conform to what the decision should have been. In this case, the disability evaluation is reduced because the previous decision was a clear and unmistakable error.

The rating decision of April, 2016, contains clear and unmistakable error in the establishment of a separate 30 percent evaluation for post-traumatic vertigo. The decision in question established a separate evaluation using a symptom of traumatic brain injury (TBI) already evaluated under the faucets of TBI evaluation, as vertigo is a subjective symptom that is already considered in the faucet of the TBI criteria.

The evaluation of the same disability under various diagnoses is impermissible under the laws governing service-connected compensation benefits (38 CFR 4.14). Evaluations concerning residuals of TBI require that a VA decision-maker evaluated each condition separately, as long as the same signs and symptoms are not used to support more than once evaluation, and combine the evaluations for each separately rated condition. remaining residuals that cannot be attributed to distinct diagnosed conditions as result of TBI are considered under the aforementioned facets and single evaluation is assigned (38 CFR 4.124a).

As the etiology of your vertigo was noted to be symptomatic residual symptom of traumatic brain injury rather than an etiologically distinct diagnosis, there is no basis upon which to establish a separate disability evaluation for this condition. As such, the current evaluation is proposed to be discontinued effective Mary 2016, the date it was erroneously established; upon final discontinuance, this condition will be evaluated as a symptom of TIB and combined accordingly.

Your overall evaluation is proposed to reduced from 80 percent to 70 percent as a result of this discontinuance. Please note, as this reduction is the result of VA error, no overpayment will be created as a result of discontinuance.

 

[Berta]

Melonbread, read the new post here on the Sec and TBI.

The VA made many errors on TBI that probably negatively impacted on many TBI vets.

Maybe the VSO can find out if you were one of those 24,ooo vets reviewed by VA already who are going to get new C & P exams.

Have you ever been diagnosed with Meniere's disease? if so ,When in relation to the TBI claim.

 

 

 

 

[Berta]

“I last read the letter one more time and I thought VA is recommending to re-evaluate my TBI residual symptoms to include the vertigo? my current rating for TBI is residuals from memory loss and concentration”

 

Yeah maybe ..it is confusing

http://community.hadit.com/topic/66859-sec-to-provide-tbi-releif/

"As the etiology of your vertigo was noted to be symptomatic residual symptom of traumatic brain injury rather than an etiologically distinct diagnosis, there is no basis upon which to establish a separate disability evaluation for this condition"

Do you have any other etiological distinct diagnosis like of Menieres, or vertigo due to hearing loss?

There might be something in your VA med recs that VA overlooked.

I am beginning to wonder how good this new TBI relief  review is going to become?

Some vets comp rates were buggered because their C & P docs were not qualified but how many might lose TBI comp with this new review?????

If I am on the blog radio show tonight ( will try to be)I will bring this up there.

 

Edited June 2, 2016 by Berta

[melonbread]

Hi Berta, thank you for your reply. I have hearing loss but is not at VA compensable rate so it is denied for service connection. I did get awarded 10% for Tinnitus. I thought vertigo was from my ear conditions instead of tying it together with TBI.

[FormerMember]

Remember, your VSO has the IQ of a goat on CUE. We discussed this yesterday on the Hadit radio show. Listen to it. Time for an IMO, cowboy.

[melonbread]

it's been three month and still no changes in my disability and still getting 80% instead of proposed 70%. Should I reach out to VA and let them know someone dropped the ball in my case?