Question About Claim And Potential Cue Claim

[Okichewy1]

I was wondering about a denied claim I had in 2012. I submitted for tinnitus and hearing loss. The VA sent me to a private audiologist for my C&P exam. He stated that he reviewed my SMR's and I didn't have tinnitus or hearing loss while in service. Claim denied.

I didn't really know any better so I let the claim close without appealing.

After some digging and researching, I found where my medical record noted tinnitus 2 years prior to me retiring. Also had 3 significant threshold shifts and a baseline adjustment while in service. I also found the VA FAST Letter 10-35 about hearing and tinnitus. I was a engineer equipment operator in the Marines. The private audiologist never mentioned any of my MOS's or weapons and acoustic noise that I was around. Also I found VA Training Letter 10-02 which talks about hearing loss and tinnitus.

I submitted a re-open claim for both in 2014, went to a VA audiologist that stated it should be S/C and also had a NEXUS letter from a private audiologist back up the VA doctors findings.

If the VA doesn't CUE this themselves, do I have a good chance at a CUE since the VA TL 10-02 states "If STR's mention a complaint of tinnitus and the veteran claims tinnitus and has current complaints of tinnitus, a MO regarding possible causation is not required. S/C can be established without an opinion about the specific cause of the tinnitus because it began in service".

To me, the VA totally disregarded this training letter dated in 2010.

I just received my C-file on CD and found in the C-file where the tinnitus is in there in my STR documents.

I am patiently waiting for this claim to complete and see if they fix it themselves, but if not, could this be a CUE claim?

I have had 3 RO CUE claims already go in favor of me over the past 5 years.

[Berta]

"am patiently waiting for this claim to complete and see if they fix it themselves, but if not, could this be a CUE claim? "

"I submitted a re-open claim for both in 2014, went to a VA audiologist that stated it should be S/C and also had a NEXUS letter from a private audiologist back up the VA doctors findings."

Have you had a C & P yet?

If the VA awards SC, and it sounds like they will, back to the date of the reopened claim, then YES it appears that you have a valid basis for a CUE claim against the older denial.

It these disabilities were at a ratable level when they denied the SC.

Do you still have the older denial and the rating sheet?

Does the rating sheet have NSC ratings at least at 10% for the tinnitus and the HL?

[Okichewy1]

On the original denial, they stated that I never had hearing loss or tinnitus claims in my Service record, but if you look at my STR is with my C-file it is all there (I think the private doctor didn't even look at my medical record) but can't prove that. The VA doctor that did the C&P for the re-open claim was mad as hell when I talked to him and he reviewed the denial exam report. There was a lot missed what he stated and he made sure it was in his report.

I am just waiting now. Last I heard the RO wanted another MO and that was received on December 16th, but I do have some other issues on a new claim pending.

Thanks for the information. Will post any updates when I hear anything.

[jbasser]

That could be a cue. File it.

J

[FormerMember]

If you just won. why would you wait for it to be over and file a CUE? That makes no sense. You file a NOD for an earlier effective date based on the EOR. Once the claim is granted, it is malleable. You are allowed leeway to correct anything that is grossly wrong while you appeal. At some point, they agree and give you an earlier effective date. Do not make it harder than it needs to be as a separate filing. If you're pro se or even using a VSO, it makes no difference, They erred. Fix it while you can appeal it as an earlier effective date Fenderson issue..

[Berta]

"On the original denial, they stated that I never had hearing loss or tinnitus claims in my Service record, but if you look at my STR is with my C-file it is all there (I think the private doctor didn't even look at my medical record) but can't prove that. The VA doctor that did the C&P for the re-open claim was mad as hell when I talked to him and he reviewed the denial exam report. There was a lot missed what he stated and he made sure it was in his report."

Do you have a copy of that report?

This could possibly be a 38 CFR 3.156 issue if they deny again.

And a violation of my favorite regulation, 38 CFR 4.6.

Edited January 26, 2015 by Berta (see edit history)

[FormerMember]

Berta, this touches on a possible 3.156©. If they didn't peruse the c-file thoroughly (as it would appear), the tinnitus SMRs fall into the "official service department documents that have only recently been associated with the c-file". Or, in the alternative, it rebuts the presumption of regularity in VA c&p examinations. See Rizzo v. Shinseki (Fed. Cir 2009) and Sickels v. Shinseki (Fed. Cir. 2011). Simply put, what appears regular-is regular. What appears irregular is most assuredly irregular- ergo the presumption cannot attach and the claimant has rebutted the presumption. Butler v. Principi Fed. Cir 2001. That CUEs the earlier decision and Fenderson kicks in. Then it's merely a matter of determining if the SMRs supported a compensable rating in the earlier filing. That may require a forensic retrospective c&p.

Always remember, VA raters have the IQ of a pet rock. They mean well but they are in over their head. Asking them to be observant and do their jobs is like herding cats -quite challenging.

[Okichewy1]

Received my decision letter in the mail. They approved me for 10% for recurrent tinnitus established as directly related to military service. Part of the evidence that was listed on this decision letter was the Rating Decision, and all evidence contained therein dated August 31, 2012. This was the original denial letter.

So my question is: Should I file a NOD requesting an EED due to the same medical information being used to decide the new claim that wasn't looked at in 2012? Or should I file a CUE and use the VA training letter 10-02 as the mistake (the VA should have given me S/C without a C&P due to it being in my STR)?

Thanks for all the help and information. The reason to fight this is about 7000.00 in back pay because this would have put me over 70% back in Sept. 2012.

[Okichewy1]

My CUE Claim was just added to my current disability claim about a week ago. I sent it in back in March (VSO has scan receipt), but for some reason the VA didn't get it. Now just waiting, since this CUE claim and my recent 100% temp convalescence claim for surgery are the only things left to sort out with my current claim.

My claim was at preparation for decision when they received my CUE claim, now it is back to gathering of evidence.

[DavidinNC]

Hello,

I was discharged from the US Navy in 1995, given a 10% rating by the Navy. I was discharged in Charleston, SC. The VA office there got my education benefits going, but the paperwork I filed for my disability claim seemed to not make it. I moved to NC in 1996 and filed again. I never heard anything. We moved to Atlanta in 1999 and I filed once more, and again got nothing back. I gave up on the VA in frustration.

In 2010, being a little older, I decided at least my wife and kids deserved to have all this straight before anything happened to me, so I filed yet again. six months after filing, got a phone call on a Friday stating i had a C&P hearing on Monday. Told the lady I had a business trip to Europe, can we reschedule? I was told yes, then several weeks later received a letter stating that since I had failed to appear, my rating was 20%. I appealed this in November 2013. In May 2014, I went to the VA to see if they would give me an appointment to replace my insulin pump. Again this was on a Friday. I was told I had two appointments on Monday morning at 7:30, for C&P hearings. If I had not happened to be there for another reason, I would not have known of these. I attended the review, and the doctor taking my information stated she saw my claim in NC from August 1996. I was happy to hear they had received it, but really frustrated they had done nothing with it. I have been receiving medical treatment from the VA for my diabetes since 1996, but stopped receiving their treatment when they refused my request for an insulin pump in 2007. In 2014 my compensation award was raised to 40%. I received a check from the US Navy when discharged, and am waiting for all that to be paid back as well.

I got a representative from the DAV who reviewed my file, and has submitted a CUE for the August 1996 filing. I notified my rep of this finding in July 2013, and the CUE finally got submitted in April 2014. She stated the RO was not looking favorably on it and was escalating. I have asked repeatedly if I can see the narrative for the CUE and have not received it. I do have this bit of information from an email;

If possible I request that Mr. Xxxx paper claims folder be retrieved from its current location and routed to this office for review. I am of the opinion, not all paper was scanned into electronic form and request conformation prior to calling a clear and unmistakable error against the Agency. Current COVERs location is listed as DCSC1 03/06/2014.

History

Rating Decision, VAF 21-6796, dated 7/21/1995, “the evidence of record establishes the existence of a chronic disability currently meeting the scheduler requirements for an evaluation of 20 percent or more. REASONS AND BASES: SMRs reveal veteran to have diabetes mellitus to which PEB assigns a 20% evaluation. We concur”.

“Informal” CLAIM in QUESTION located in VBMS for investigation of possible CUE

VAF 21-4138 dated 08/09/1996 (with NC address), date stamp received 08/15/1996, (hand written notes along edge of form) CEST’d as EP 180 09/19/1996, PCAN’d 01/06/1997, with note 526 to vet. There is no evidence in the electronic file that the 526 was actually mailed to the claimant for completion on VA letterhead..

Reopened Claim with grant of benefits

VAF 21-526, dated 11/05/2010, requested service connection for DM. Service connection awarded at 20% 03/18/2011, effective 11/05/2010. Note of interest - introduction of narrative states, “you filed a claim for increased evaluation”, however, veteran FTR for VAE 02/22/2011 and benefit was awarded based on STRs dating back to 1995.

Report of General Information dated 11/29/2013, requested increased evaluation for DM, rated as 20% disabling along with other issues. Rating decision dated 07/03/2014, increased DM from 20% to 40%, effective 11/29/2013.

Point of interest – the veteran participated in and completed his education under Chapter 31 WITHOUT have a formal rating from the Agency.

They cannot find my paper file, and a 3rd party company was responsible for scanning documents into electronic form something like 10 years ago.

I have been tempted to contact Ms. Hickey about this, but am concerned I will receive more negative treatment for not allowing the CUE to be processed without saying anything. All I am asking for is a little common sense. I have submitted a request for compensation several times. Your comments are appreciated.

Edited June 16, 2015 by Tbird
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[Berta]

Another hijacked post......

This should have been posted as a new topic.

"I got a representative from the DAV who reviewed my file, and has submitted a CUE for the August 1996 filing."
Yippee!!! It sure sounds like a CUE.,,m or a still open issue....

" I notified my rep of this finding in July 2013, and the CUE finally got submitted in April 2014." The Cue could have been filed within a few hours...after they knew of it.
" She stated the RO was not looking favorably on it and was escalating."
How would she know that."Escalating" that word ,in this situation , does not make sense at all.

"I have asked repeatedly if I can see the narrative for the CUE and have not received it."
You have a right to see what they filed. They probably buggered it all up. It sounds like an easy CUE or request that they adjudicate that older claim.

This is odd

Reopened Claim with grant of benefits

"VAF 21-526, dated 11/05/2010, requested service connection for DM. Service connection awarded at 20% 03/18/2011, effective 11/05/2010. Note of interest - introduction of narrative states, “you filed a claim for increased evaluation”, however, veteran FTR for VAE 02/22/2011 and benefit was awarded based on STRs dating back to 1995."

I am thinking the FTR and VAE means Failure to return for VA evaluation but they based the award on the STRs.

But this concerns me more:

."If possible I request that Mr. Xxxx paper claims folder be retrieved from its current location and routed to this office for review. I am of the opinion, not all paper was scanned into electronic form and request conformation prior to calling a clear and unmistakable error against the Agency. Current COVERs location is listed as DCSC1 03/06/2014."

When did they make this request, was that after they indicated they had actually filed a CUE claim for you? They said they filed in April 2014, but as of what appers to be a date closer to March 2014, they had not filed it.

"History

Rating Decision, VAF 21-6796, dated 7/21/1995, “the evidence of record establishes the existence of a chronic disability currently meeting the scheduler requirements for an evaluation of 20 percent or more. REASONS AND BASES: SMRs reveal veteran to have diabetes mellitus to which PEB assigns a 20% evaluation. We concur”.

Did yiou get 20% comp from VA at that time at all or was part or all of any separation pay you got?

"I have been tempted to contact Ms. Hickey about this, but am concerned I will receive more negative treatment for not allowing the CUE to be processed without saying anything. "

From what I see here , I am not sure you even have had a CUE claim filed by the DAV.

Do you use ebenefits?

"Common sense" alludes the VA.

And we MUST be proactive .I have received negative treatment from VA for 20 years, and inspite of their inability to properly adjudicate my claims, I have won them all but one....awarded but no retro......the no retro part is only because they refuse to read my evidence.

I contacted Hickey in Feb and since then it has been very frustrating....because many VBA people as well as the RO were CCed in the emails she sent, but so far NONE of them have been willing to apply 38 CFR 4.6 to my claim.

I emailed all of the cced people at VBA in DC and their lack of any respnse for the past 4 months will be imporatant to my writ of mandamus.

I dont think you will go through this same BS.. I have always been on my ROs shit list.Every claim I had was a battle....to Victory And so far the only issue pending
will be resolved,either through the writ or if someone at VACO at some point ,can read. My RO sure cant.,as I can prove, due to extraordinary means it took on my part to get my past issues properly resolved.

Allison.Hickey@va.gov

What RO do you deal with as I might have contact info for them.

You might be able to email their director by using their first name, then a period , then Last name at VA.gov

You need to know if that CUE claim was actually filed by the DAV.....and you have a right to have a copy of it.

[Berta]

You need a copy of that C file for yourself as well.

I had the DAV many years ago. I sued the rep in Fed Ct, but then withdrew the suit after 2 depositions because I had won my VA case anyhow.

The DAV lawyer pulled me over after the last depo and advised me to go to law school.

That was because of a FTCA wrongful death settlement I whipped out ....he was stunned at the work I had done to win FTCA.

and also how I had deposed the DAV rep.

I still wonder if he , the DAV NSO, ever had a copy of my C file at all.... in it was a critical Peer Review that VA told me had never been done.

I got my C file copy a few years later ,when I opened a new claim, and there was the non existent medical review right at the bottom, with all the other stuff they said they never got.

I used the old 'non existent' critical review for my AO IHD and DMII claims.

A C file brings a wealth of surprises sometimes.

Edited June 16, 2015 by Berta (see edit history)

[DavidinNC]

Hello again,

My sincere apologies for hijacking this thread, I am pretty new to all this.

August-October 2014 I was in email discussions with my DAV rep, stating she was asking for the paper file but not receiving a response about it. December I received an email stating the DAV rep would be submitting the formal CUE after the holidays. I was told in April 8th that the Regional Office was not "being receptive" and that it was being reviewed by 2 other raters, who also didnt agree with the CUE, so the D

[DavidinNC]

I was told the DAV rep was asking for my paper file to confirm her suspicion my request for compensation was not handled properly in 1996. I was then told in November 2014 they had not received it yet, and planned to move forward. I was told in December the CUE would be filed after the holidays. I asked again for the status in April 9th and was told the VA asked for an official filing (is there some sort of unofficial filing?) and that my CUE had been uploaded via SEP on April 9. I received a notice stating my claim was ready for decision on May 5th. I have asked again for the CUE narrative.

[DavidinNC]

I received a check from the Navy in 1995, separation pay. I was told at that time the VA would recover that money when I filed a claim. I have spoken with the VA about the amount left and I should start to see some of the monthly compensation in December 2017.

My RO is Winston-Salem NC. i am enrolled in e-benefits. I never received any compensation until my 20% was awarded for my November 2010 filing, but as I said I wont see any of that until the other money is recovered. Its real frustrating to see them say I failed to return, when in fact it was their failure to reschedule the VAE as I asked. They waited until the day before my appointment to tell me I had one.

[DavidinNC]

what file are you referring to with "C", my compensation file?

[Berta]

yes, the Claims file.

Copies of C files can be requested from the RO you deal with.

I got a copy of mine within about 6 weeks many years ago but they seem to take longer than that now to get copied.

[DavidinNC]

How long do CUE decisions take after they are deemed ready for decision? Is there an average, or no one knows who and when they will decide?

[DavidinNC]

Hello,

I received my CUE submittal document today. I would like to post it, but there is a lot of personal information I cant really remove it. How best to accomplish this?

[Berta]

Can you cover the personal info with some index cards or slips of paper, prior to scanning it ...cover your C file, name, address too.

You can then attach it by using the "More reply options" button to the lower right of the reply area.

[DavidinNC]

Hello,

I have attached a PDF file of the narrative.

CUE submission 04092015.pdf