Question On Cue

[Berta]

I got an email notification this AM that someone had a question on CUE at the BVA, but Ideleted the email and cannot find the question here- then again I am not quite back to normal yet- (whatever that is!)

I think this was what the question was about-

When a vet files a CUE claim against the BVA (on a fnal BVA decision)

the regs they use are withn 38 CFR Part 20- (20.1400-1402)

These regs are used within Jarrell, 20 Vet App at 33 and also in Russell.

Bsically the same CUE principles apply to the ROs as well as to the BVA.

NVLSP hwever makes this point:

BVA strictly adheres to the premise that -had the error not produced a different significant result-the error is not clearly unmistakable.

Section 20.1403 of 38 CFR s the BVA definition of CUE-

and the Bell Decision of July 21,1992 can impact on what a BVA CUE is or isnt.

Bell V Derwinski 1992

[stillhere]

I see where the a CUE cannot be based on evaluation of evidence. However, would that mean situations where the evidence was never evaluated? For instance SMR's that were never evaluated, or medical reports that were in the hands of the VA, but were never evaluated? It seems to me that you have two issues in these cases. Not evaluating available evidence is the CUE, but after that the VA has to re-evaluate the entire package of evidence with the evidence that was originally not evaluated included. The VA is supposed to evaluate all relavant evidence. How can a vet ever get a just decision if the VA can pick and choose what evidence they are going to evaluate? That is fundamentally wrong and goes against all concepts of due process.

This is my CUE and I am waiting 5 months to find out. My lawyer believes it was a CUE because the VA had a medical report that they just ignored when they evaluated my claim. They only used evidence from a VA doctor and my SMR's, but not my civilian doctor.

When I got out in 71 it clearly says high frequency hearing loss, when I filed in 83 the Rating Decision in my C file said:

SMR shows normal audiogram on preinduction PE. SMR is silent for complaint of hearing loss. SMR shows normal audiogram on separation PE.

VAE shows mild to severe HFHL on the right and mild to moderate on the left.

Evidence of record shows that no hearing loss occurred durring service.

NSC VE

6292 bilateral HF hearing loss

My discharge PE while it does say is qualified for separation it also states Hearing loss- unilateral high frequency loss.

Please let me know what you guys and gals think.

[john999]

I think the rater got it wrong when you filed you claim because your discharge physical said hearing loss. That might be into the realm of interpretation of medical evidence. If so that shoots the CUE all to hell. The trouble with hearing loss is that if many years have passed since discharge the VA may say this is just normal aging process. Count on them to say that. Did you appeal the 83 decision? Now over 20 years have gone by since the 83 decision. What was your MOS in service? If you were a tanker or something like that then common sense would suggest possible hearing loss due to military job. However, VA does not use common sense.

[broncovet]

I have been SC'd for hearing loss, and there is no record on my military exams of hearing loss. My audioligist offered the opinion, "hearing loss is most likely related to military service".

Of course, the regional office denied my claim, but the BVA pointed out that the rating officer can not make a judgement call about my hearing loss that trumps a qualified audiologist.

ONLY a qualifed audiologist can dispute that statement, and, even then, if two audiologists differ in their opinion, then the "favor the Veteran rule" should apply.

In a nutshell, you need to visit an audiologist, if you havent already, and ask him/her for this opinion, and explain your reasons. If you live in a "Veteran friendly state" then you will probably be successful. I got mine through even tho I am in a very Veteran unfriendly state, Ohio. (Ohio ranks second to last in its benefits to Veterans, according to the Attorney general report)

You can find it here: http://blog.cleveland.com/openers/2008/04/...k_vasil_of.html

Edited December 17, 2008 by broncovet