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

[stillhere]

J what do you mean? How do I get the regs from 83? Are you trying to say that I did not meet the level for hearing loss or what?

Stillhere

[john999]

Stillhere

What John is saying is that your CUE claim is based on a violation of the rules as they were in 1983. The standards for rating disabilites change over time. All sorts of changes happen to VA rules and regs. Even the BVA screws up and uses the wrong set of rules on some CUE claims, including mine. In 1972 the rules for rating mental disabilites changed. I got caught right in the middle of that and it resulted in a remand from CAVC to BVA. Nobody caught it until it got to the CAVC.

[stillhere]

So how in the world can I call cue on a decision from 1983 when I don't have a copy of the regs?

I got a denial on my reconcideration for a EED by VA today and in their denial they said I would have to file an CUE or NOD. Now if I file a NOD a guess I would say that their date is wrong based on the facts in my folder and the time and the explanation of the reason I was granted hearing loss this time.

Or do I file a CUE and say that based on the evidence on hand in 1983 there should have been an undebatable award of sc?

Or is this when I get the lawyer involved?

[Berta]

"So how in the world can I call cue on a decision from 1983 when I don't have a copy of the regs?"

That is never a problem if you do some leg work at the BVA or the CAVC.

"I got a denial on my reconcideration for a EED by VA today and in their denial they said I would have to file an CUE or NOD. Now if I file a NOD a guess I would say that their date is wrong based on the facts in my folder and the time and the explanation of the reason I was granted hearing loss this time."

VA is right...personally I would file both.

You could do what I did...I filed CUE and then filed the NOD because they had not acted on my recon request to my satisfaction.

Either way you go, I suggest doing what I did for both the CUE request and the NOD....

I made the point that the medical evidence had already been established and that it had been in VA's possession at time of the alleged CUE.

I listed the regulations they broke in 1998.

I clearly told them how their errors ( their were 3 CUEs I identified with specifity in this specific CUE claim I filed).

I listed and enclosed the LEGAL provative and overwhelming evidence regarding their CUEs and how it manifestedly altered the outcome of their 1998 decision.

(I think to the tune of 20 thousand..I forget what the award letter said last year.....

the CUE award generated more money than the AO IHD award did that was decided along with the CUE claim)

.and I asked them to CUE the award letter it anyhow months ago because they forgot about 40 thousand more they owe me)but I filed a timely NOD too.

"Or do I file a CUE and say that based on the evidence on hand in 1983 there should have been an undebatable award of sc?"

The medical evidence should have been in VA's possession in 1983...you are right there....

Using DC 6100 (I assume this is the code they used in the older decision) as explained below,

tell them how they erroneous adjudicated the established medical evidence, based on the criteria of DC 6100.

I am guessing here however, because DC 6100 was prevalent VA case law at time of the older decision you received.

I also am guessing because I dont have the actual decision you go in 1983 in front of me....

and I just realized I gave you a template here already:

"The VA failed to properly apply the evidentiary requirements of 38 CFR 4.6 to the 1983 decision and" etc

I throw in 38 CFR 4.6 when ever I can use it against the VA. It should always be in a CUE claim.

The more regs you can prove they broke, the better.

"Or is this when I get the lawyer involved?"

I know those older decisions were hokey from VA in the 1980s.But I helped my husband get the VA to drop a proposed reduction in the 1980s solely with a NOD I wrote for him. I still have that old stuff from VA. They did quote 2 VA regulations and gave a brief (but ridiculous) rationale for the proposed reduction based on the regs. .

I used those same regs against them and they dropped their idea.

My point is a lawyer will need to see that older decision.

Do you still have it?

Can you scan and attach it here? (cover the personal stuff)

The legal basis for the CUE is right in that decision.It might not be a wrong Diagnostic code at all and they used a different rationale. ????

In this recent BVA decision, the BVA used HL regulations tat were in lace in 1983 as well as 1987.

In part:

As for left ear hearing loss, the evidence shows that on entrance examination into the United States Army Reserve in February 1983, the Veteran's puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 5, 5, 5, and 45 respectively, in the left ear. Therefore, the Veteran's left ear hearing loss preexisted his ACDUTRA service in 1983. On entrance examination into active duty service in November 1987, puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 0, 5, and 50 respectively, in the left ear. As discussed above, a private audiology examination in December 2008 shows that the Veteran's hearing loss could have been caused by noise exposure from Howitzers, explosions, and gunfire. On VA audiological examination in January 2011, the Veteran had left ear hearing loss as defined by 38 C.F.R. § 3.385 and he reported that he has had hearing loss since a grenade went off in the 1980s while he was in basic training in the Reserve. The examiner concluded that the Veteran's hearing worsened in both ears during Reserve service, although she was unable to conclude whether the Veteran's hearing worsened during active duty service from February 1988 to August 1991.

ORDER

Subject to the provision governing the award of monetary benefits, service connection for bilateral hearing loss is granted.

Subject to the provision governing the award of monetary benefits, service connection for tinnitus is granted.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files1/1300550.txt

In this case the BVA stated:

“The veteran contends that he has right ear hearing loss due to acoustic trauma in service. He maintains that testing of his ears in 1983 in relation to employment, shortly after service, showed right ear hearing loss, and he requests service connection for this disorder. Additionally, he maintains that his service-connected left ear hearing loss is more severe than currently rated and requests a compensable evaluation for this disorder. “

And

1. Right ear hearing loss was not incurred in or aggravated by active service, nor may sensorineural right ear hearing loss be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993).

2. The criteria for a compensable evaluation for left ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 1160(a); 38 C.F.R. § 4.85, et seq., Code 6100.”

It is important to note that they are using Diagnostic code 6100 for the left ear HL criteria .

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp94/files1/9407969.txt

Diagnostic code 6100:

In this BVA case ( the DC of 6100 is not in the current VASRD)

“The January 2008 VA audiological examination demonstrates that under the Rating Schedule, the Veteran's hearing impairment was manifested by level I hearing acuity in the right ear and level I hearing acuity in the left ear. 38 C.F.R. § 4.85, Table VI, DC 6100. Using Table VII, the result is a noncompensable evaluation for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. “

and

The Veteran's left ear hearing loss shown by this audiological examination does not qualify for consideration of exceptional patterns of hearing impairment, as he has not demonstrated a puretone threshold of 55 at 1000, 2000, 3000, and 4000 Hertz in either ear, or a puretone threshold of 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz. However, the Veteran's right ear hearing loss does qualify, as he demonstrated a puretone threshold of 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. Thus, the Board must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, and elevate that numeral to the next highest numeral for consideration. See 38 C.F.R. § 4.86.

The Veteran's puretone threshold average of 54 with speech recognition ability of 92 percent warrants level I hearing acuity using Table VI and warrants level III hearing acuity using Table VIa. The higher numeral, numeral III, is elevated to numeral IV. See 38 C.F.R. § 4.85, Tables VI, VIa, DC 6100. Considering exceptional patterns of hearing impairment in the right ear, the Veteran's hearing impairment is thus manifested by level IV hearing acuity in the right ear and level I hearing acuity in the left ear. Using Table VII, the result is a noncompensable percent evaluation for bilateral hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. “

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files5/1234330.txt

In this above case :

“The Veteran served on active duty from April 1976 to April 1996.” and had received a non compensable rating for his HL and this is way the BVA used the prevalent diagnositic code at that time, DC 6100, which they explain in detail in this decision.

Old Diagnostic codes (some have changed over the years) can be searched for at the BVA site in their decisions to see how the VA applied them at the time.

[stillhere]

Thank you Berta I will be doing some scanning later on and right now I am going to do some searching at BVA!

This thing aint dead yet!

Edited April 19, 2013 by stillhere