Understanding Cue For Service Connection

[stillhere]

OK Short story,

Filed in 83 test showed bi-lateral severe hearing lose by a VA C&P. Received decision a one page letter with the words Service connection denied. Nothing else. Got a copy of c.file in 2005 and really not much there as to why they decided that back then.

Filed to reopen with new material evidence and after a NOD and form 9 filed finally sent for C&P and the doctor stated that hearing loss is service connection and based it on the entrance exam from 1969 and the exit exam being so mistakenly applied as to render them flawed. Award of SC granted,

RO based award of 70% but only back to 2008.

While the entrance and exit exams were in my folder and used to decide SC in both. Shouldn't the RO automatically CUED themselves?? Only the % would be of question and I have many tests over the years to help with that.

What do you all think?

Thank you, Stillhere

Edited August 26, 2012 by stillhere

[johnjjr]

Maybe I'm not fully understanding your post, but shouldn't the VA have cued themselves and granted SC back to the original filing date in '83?

[john999]

What is your theory of the CUE when you were denied the first time? You need to file the CUE and explain exactly what the CUE was and when and where it was made. If you are waiting for the VA to CUE themselves it may be a few dozen years. What was the evidence the VA used to deny your claim? What was the evidence you had to grant your claim? What was the VA's reason for the denial?

I agree that an error was made but was it a CUE?

John

[Philip Rogers]

I'd file. You can call it a greivous error or possibly CUE. I think they owe you but I'm only basing that on what you've stated here.

pr

[broncovet]

Stillhere

It sounds like you are essentially seeking an EED. Keep the goal in mind, and not worry so much "how to get there", but the fastest and best way.

CUE claims are usually the "last resort" (in winning EED) only after all other methods have failed.

Before you try CUE, look into these first.

1. Informal claims.

2. Pending claims...Did you appeal the 2005 claim? Did the VA respond? Did the VA fail to adjuticate?

Did the VA fail to issue the required SOC to your timely filed NOD (if you filed one)

3. New and material Service records. CFR3.156C. Was any of the records you resubmitted "new and material"?

4 Inferred claims.

5 Shredded or mishandled evidence?

Lastly, The VA is required, by statue to give a "reasons and bases" for their decision. One other where I saw, tho I cant recall or supply a link, the CAVC remanded the claim to give an adequate Reasons and Bases. However, this may work and open the door for you, but I urge you to NOT give up your "standard of review" unless you have no choice. That is, CUE is the "undebatable" standard of review, where other stuff is "benefit of the doubt" to include the doctrine of equipose. With CUE, you forfeit the "benefit of the doubt.

[stillhere]

Stillhere

It sounds like you are essentially seeking an EED. Keep the goal in mind, and not worry so much "how to get there", but the fastest and best way.

CUE claims are usually the "last resort" (in winning EED) only after all other methods have failed.

Before you try CUE, look into these first.

1. Informal claims.

2. Pending claims...Did you appeal the 2005 claim? Did the VA respond? Did the VA fail to adjuticate?

Did the VA fail to issue the required SOC to your timely filed NOD (if you filed one)

3. New and material Service records. CFR3.156C. Was any of the records you resubmitted "new and material"?

4 Inferred claims.

5 Shredded or mishandled evidence?

Lastly, The VA is required, by statue to give a "reasons and bases" for their decision. One other where I saw, tho I cant recall or supply a link, the CAVC remanded the claim to give an adequate Reasons and Bases. However, this may work and open the door for you, but I urge you to NOT give up your "standard of review" unless you have no choice. That is, CUE is the "undebatable" standard of review, where other stuff is "benefit of the doubt" to include the doctrine of equipose. With CUE, you forfeit the "benefit of the doubt.

The EED I am looking for is back to 83 I filed then and was denied based on my entrance and exit exam. The one page denial did not explain why, it just says service connection denied. I think i will go back through my C file and see if a reason is given there. But I wasn't able to find it before.

The bases for CUE if I file that way would be the reason they denied in 83 but approved in 12 with the same two tests being the point used on both.

My entrance exam showed a very high loss at 55 in the frequency of 4,000 yet my exit exam showed perfect hearing. The C&P examiner explained that this type of hearing loss is not the type that would have improved and especially in a war zone!

I was not able to get a C&P for hearing lose over the years because the VA kept saying there was no new and material evidence. The only thing in this appeal was another letter from a private Dr. stating the same thing but I had included letters questioning the exam before and did not get it reopened.

Strange that I ask for a BVA appeal and then they decide at the RO?

Edited September 13, 2012 by stillhere

[stillhere]

Maybe I'm not fully understanding your post, but shouldn't the VA have cued themselves and granted SC back to the original filing date in '83?

I agree! Stillhere

Maybe I'm not fully understanding your post, but shouldn't the VA have cued themselves and granted SC back to the original filing date in '83?

I agree! Thanks