Still Trying To Understand Cue

[stillhere]

Ok #1. Denial says that there is no record of hearing loss in pre induction exam.

Exam shows a high frequency loss of 55db at 4,000hz

#2. Denial says no record of hearing loss while in service.

On discharge exam doctor wrote unilateral hearing loss.

#3 Denial says sensorinal hearing loss moderate to severe right ear and mild to moderate left ear.

No mention if this is or is not ratable?

Would appreciate some help so I can move on this before my reconsideration is up in June.

Thanks, Stilhere

Edited April 17, 2013 by stillhere

[Berta]

“Exam shows a high frequency loss of 55db at 4,000hz “

“On discharge exam doctor wrote unilateral hearing loss. “

Does the VA have those records? Did they refer to them in the denial?

“Denial says sensorinal hearing loss moderate to severe right ear and mild to moderate left ear.

No mention if this is or is not ratable?”

Have you accessed the VASRD here at hadit to see what the HL criteria was,for hearing loss, at time of the initial denial?

You will need the full audio C & P to match it up with the HL values in the Schedule of Ratings.

I regret I dont understand the Audio stuff but others here do.

I went back to a past post you made stillhere:

“Posted 05 March 2013 - 09:51 AM

I while back I posted on here about my hearing claim being approved on basically the same evidence the VA has had from my first claim for hearing loss back in 83 that was denied.

I was thinking of filing a cue at that time but instead went with a reconsideration. On ebenefits it is showing the VA is treating my claim as a comp&pin claim. They just sent me a request for any other evidence I might have??

In my letter to them I specifically asked for a reconsideration based on the facts that are in my folder from 1983-to present. I asked them to review my folder and give me an earlier ED based solely on my file.

This request for new eveidence is totally out of what I am trying to do. How would I respond to this request?

Advice them again to read my letter and proceed with their review or send another letter spelling out what I feel in detail the reasons I beleive they have made a mistake on my effective date?”

I personally feel that, if the VA does not act on the Reconsideration request and you have to file a timely NOD, then I would refer to ,in the NOD and attach, a formal separate CUE claim with it.

CUE Template:

'This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A

The Clear and unmistakable error occurred in a final (date of decision) VARO decision ( state VARO name here)

The VA failed to properly apply the evidentiary requirements of 38 CFR 4.6 to the 1983 decision and thus failed to consider my documented service records dated (put dates here), and I have enclosed copies of them, rendering a denial,at that time of benefits I was eligible for, and thus VA had manifested an altered and detrimental outcome to me with a denial of that specific 1983 decision regarding the hearing loss claim.

That is just a basic template and I would think you need to raise the fact that they might well have given you the wrong diagnostic code as well with the 1983 and that too is a CUE if the DC they used was wrong.

Also with a 1983 decision, you need to consider Bell V Derwinski.

Our esteemed member ASKNOD, gives a basic run down on Bell here:

http://asknod.wordpress.com/2011/09/27/cova-bell-v-derwinski-1992-constructive-possession/

(Again we find that a widow , Velma Bell, had been aggressive and didnt take any nonsense or crap from the VA.... some of us widows are Fire Spitters when challenged by the VA!)

As ASKNOD states in this link he wrote:

Velma might have been born at night, but she was not born the night before this legal wisdom was handed down to her. She promptly lawyered up and went to the Court for some answers. The Court, bless them, looked at this and immediately saw the dichotomy, circular logic and the Secretary’s defective reasoning.

The Court held that if you properly submit records, or more importantly, if the VA creates records of any judicial or medical nature related to you or your claim, they are responsible for maintaining them and assuring that they are properly filed in a central repository- namely your C-file. While this would be the ideal method, the Court went further and held that any documents or medical records held by VAMCs, while not explicitly in the C-file, were still in the VA’s “constructive possession”.

Bell V Derwincki might not evcen be an issue in you case, but the date 1983, of the past decision always makes me consider the Bell V Derwinski 1992 ruling.... and it is well established VCA case law.

I raised Bell in my CUE to remind VA that some of the records pertinent to my SMC might still have been at VA Office of General Counsel, but they were still in VA's possession at time of my alleged CUE.

I posted my entire SMC CUE claim here some time ago and maybe that will help you follow the template I wrote for my CUE and used. Here it is .

( I got a chuckle out of reading that past older post I made. Since then I asked them to CUE one part of the award .It is still wrong)

CUE requires two basic things:

1. Proof of a legal error in a past and denied decision.(Cues against BVA require a Motion of CUE filed with the BVA)

2. Proof that this legal error (or more then one legal error) manifestly altered the outcome of that decision.

   (meaning basically the VA denied you retroactive disability comp due to their CUE and that the disability in question was SC (*or 1151 SC) and at a ratable level.

The legal error or errors MUST be defined with specificity. I cited the exact three regs they broke in my SMC CUE .

And the medical evidence at time of the alleged CUE MUST have been established already.

( I assume the award you received revealed this exact same evidence) ...“I while back I posted on here about my hearing claim being approved on basically the same evidence the VA has had from my first claim for hearing loss back in 83 that was denied.

Here is 38 CFR 4.6:

http://www.law.cornell.edu/cfr/text/38/4.6

I used it as but one facet of proving my CUE.

The VA in my 2004 SMC CUE had violated 3 specific legal citations and I proved them all, by reading over carefully 5109A.

http://www.law.cornell.edu/uscode/text/38/5109A

And then I shaped my Legal Evidence solely with the 5109A criteria in mind and sent them documented proof of how they violated these 3 conditions of established VA case law.

It is hard for us to really determine what aspects of CUE are in your older 1983 decision.

We have considerable info here on CUE.

Unfortunately there are many denials of CUE at the BVA web site.

Yet some awards.

But I believe there are more decisions then we know that might contain CUE and the claimant and even their VSO or rep never considered or challenged the VA on the CUE aspects of a past unappealed decision.

VA is so fubared these days and under the gun to get backlogged claims decided, that I also believe many recent decisions are probably all wrong too.

[stillhere]

Thank you Berta I think I am beginning to see the light?! Yes my hearing test would/should have been rated 30-40% in 83.

Stillhere

[john999]

Would Bell vs Derwinski 1992 be invoked if evidence was part of the record of a claim prior to 1992, but the VA simply excluded that evidence from a decision? In other words the evidence was in the C-file, but somehow just ignored by the VA in making a decision when this evidence was crucial to a correct decision.

[stillhere]

I don't know John but I would question how they can ignore what is in our files. I know the VA gives reasons for denials now much more than in the past. I am astounded if they can ignore evidence and deny!

What could they base the denial on when it is right there in the Cfile?

Stillhere

Edited April 17, 2013 by stillhere

[john999]

Stillhere

I don't know how they ignore evidence in the file when it is requried that they consider every piece of evidence in the file that has a impact on a decision, but they have done it many times in the past. They state that just because they did not discuss the evidence or refer to the evidence in the decision it does not mean they did not consider it. This is solid BS.

[jbasser]

Remember folks. On a CUE the rules are this: The claim is based on the regs in effect at the time of the original decision.

.