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.

[DavidinNC]

Okichewy1, how did you get VA to recognize your sleep apnea? I have always had it since I was about 25, but never knew what it was. I have been treated by civilian physicians for it. I provided VA with my civilian medical records, and claimed my sleep apnea but they denied it.

[Berta]

Did you apply for the DMII comp within one year after your discharge? If so the day after your discharge is the proper EED.

However there was a severance pay issue as well.

This was not filed as a CUE claim under 38
but as a Revision request under 38 CFR 3.105

Probably the reason whoever wrote this claim is due to the severance pay issue.

The point about the proper EED and the informal claim date is very good, but it might not work.

However Tthe Chapter 31 memorandum sure might have been considered as an intent to file a formal claim.

In this decision the BVA states:

"A veteran is entitled to training or rehabilitation under
Chapter 31, Title 38, United States Code, if various criteria
are met. When a veteran’s application for vocational
rehabilitation training is received prior to November 1990,
as in this case, basic entitlement requires the veteran have
a service-connected disability that is rated 10 percent
disabling or more, and be found by the VA to be in need of
rehabilitation because of an employment handicap. 38 U.S.C.
§ 1502(1)(A); 38 C.F.R. § 21.40. (The Board notes that
because the law changed to require that a veteran have a
service-connected disability rated at least 20 percent, to
meet this basic eligibility requirement, for claims filed
beginning in November 1990, consideration has been given to
the earlier, more favorable version of the law. Additional
regulations in effect at the time she filed her claim, set
forth below, have remained essentially the same.)"

http://www.va.gov/vetapp97/files4/9736957.txt

This is a 1997 decision based on a 1995 decision, the same time period the EED claim is based on.

Voc Rehab must have had a rating decision from VA in order the extend Voc Rehab Chap 31 to you.

Voc Rehab records ( i found this out when my husband was in Voc Rehab) are not part of the medical file or the C file.

But they could certainly be obtained from the VARO that oversaw the Voc Rehab issues here.

Those records might contained an inferred issue made by VA, that they did not follow through on., prior to the EED they gave you.

[carlie]

I just dont understand why this topic is still being hijacked.

jmho

[DavidinNC]

Carlie,

My apologies I will start a new conversation. Not sure how to transfer the relative. Moments

[Okichewy1]

So as of 13 August, 2015 my claim with the CUE in it is at Pending Decision Approval phase and should be completed within the month.  Lets hope for my CUE to get approved. 

 

Will update when I get the decision letter.

[Berta]

Good , please let us know the results!