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

[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.