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

[stillhere]

After pulling out my copy of the C file I finally after all these years found the rating decision from 1984.

They used a different form back then #21-6796 that's why I missed it.

Anyhow per the decision this what it says:

Original Claim ( my very first claim)

SC for hearing loss.

SMR shows normal audio gram on preinduction PE> SMR is silent for complaint of hearing loss. SMR shows normal audio gram 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 during service.

NSC VE

Bilateral HF hearing loss.

The actual letter that was sent to me said:

We cannot grant your claim for disability benefits.

The evidence does not establish service connection for the following:

Evidence of record shows

That no hearing loss

occurred during your service.

The major thing here is the fact the preinduction did show a high frequency loss and the exit exam showed perfect hearing.

I feel that the CUE is their mistake of reading the exam correctly.

Thanks, Stillhere

[john999]

If the CUE was made at the VARO you have to file at the VARO. They may have misread the entrance and exit hearing exams. The VA is pretty dumb so it is possible. That would be a CUE. The old decisions were often horrible with no reasons or basis and very little evidence. They also picked and chose what evidence they would list and/or refer to in their decisions. Granting hearing loss as SC in 2008 and denying it in 1983 does not make sense. There is something really screwy about your 1983 rating and your effective dates. The older claims from 60's and 70's were even worse.

[Hollis]

well this very close to my case, In 1983 I was denied SC for hearing loss. So I gave up on it. I know my mistake. Anyway, in 2008 I asked the VA to reconsider to reopen it.OK they did reopen it. It took me until Aug of 2010 before I was granted 50%, 20% per ear and 10% for tinitus. I ask to them why not going back to 1983 and they said since I did not appeal it then, it was closed. Now up to date. I got my SMR and I found where a interal memo said to cancel the C&P. I do believe they was dated before I was sent the letter saying I was denied. I am go to the local VA office in the morning and see what he has to say and what I should do. any suggestion would be greatly appreciated.

[Berta]

I would file a CUE on the older decision if I were you.

But first look into 38 CFR 3.156 as Broncovet advised, to see if they in fact had these service records when they made their initial decision.

Either way -Filing CUE or 3.156 (b), can often bring a better EED to claims of this type.

The audio decibel charts in the Schedule of Ratings are difficult to interpret but they could prove that your HL was at a ratable level when discharged.I am assuming thse audioo charts have not changed in decades .???

"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."

It seems to me that the ROs only CUE themselves when they try to find a reason in a past award, to try to reduce a veteran's current compensation.

We can ask them to do that (CUE themselves) if a decision is erroneous and still in the appellate status.I did that with some success.

But the decision has to be legally flawed.

The request must contain the legal error ,in violation of 38 CFR and/or M21-1MR, that they made to the claimant's detriment.

Edited August 28, 2012 by Berta

[stillhere]

Thanks for the suggestions I am leaning following Bronco's point.

I am going to ask for a reconsideration on my last approval and request an EED backed to my original because the evidence they used to grant in 08 was already in my file from the denial in 83.

My thinking is this will get the ball rolling right away and hopefully take the least time, while the decision is fresh in their minds.

Any comments?

Stillhere

By the way YES the tests for entrance and exit are still the same and my 83 exam shows clearly a compensation rate in 83.

[john999]

I think a CUE is the only way you are going to get them to grant retro benefits back to 1983. Your decision must have become final back in the day. You must show the VA that they made an error in your rating in 1983. The VA does not want to pay out almost 25 years of retro unless you force them via their own rules. I am asking the VA to pay me 100% back to 1971 which is 30 years from the date they finally granted TDIU/100%. My lawyer and I know exactly what mistake they made and the VA is fighting it tooth and nail. It has been six years since I filed the CUE. You might run your claim by a VA lawyer.