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Okichewy1

Cue Claim Template?

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I was told by my VSO to write a statement for a CUE claim. I am looking at the CUE because the VA didn't follow VA Training Letter 10-02 that should have directly S/C'ed me for my tinnitus without an exam, but also because they approved my Re-open claim 2 years later and the only difference was a new C&P exam.

Any help would be great. This is what I came up with:

I respectfully request the VA to call a clear and unmistakable error on part of the January 3, 2013 decision from the Boise VARO and to correct it.

In this Decision Letter, I was denied service-connection for Tinnitus. I mentioned tinnitus (ringing in the ears) on my April 4, 2012 Statement in Support of Claim for hearing loss. Tinnitus is listed as a deferred claim on my September 4, 2012 Decision Letter. I submitted a Statement in Support of Claim for Tinnitus on September 5, 2012 and again on October 25, 2012.

I was given a C&P exam on August 14, 2012 by Audiology and Hearing Aid Center in Boise, Idaho.

I received my Decision letter with the denial of Tinnitus on January 3, 2013 stating that “Your service treatment records do not contain complaints, treatment or diagnosis for this condition”.

During my C&P exam, it was stated that I didn’t have any mention of tinnitus in my Service Treatment Records (STR).

On the Compensation and Pension Exam Inquiry dated July 13, 2012 on page 3, the hearing exam that was completed on 4/1/2008 is also where my tinnitus was identified while in service, but there was no mention of my tinnitus in the inquiry.

The evidence listed on my Decision Letter dated January 13, 2013 listed Service Treatment Records from June 5, 1989 to March 3, 2010.

In VA Training Letter 10-02 dated March 18, 2010, on page 7, item #5 it states: If service treatment records mention a complaint of tinnitus and the veteran claims tinnitus and has current complaints of tinnitus, a medical opinion regarding possible causation is not required. Service connection can be established without an opinion about the specific cause of the tinnitus because it began in service.

The VA's failure to consider and evaluate the evidence and follow VA Training Letters that the VA had in their possession manifestly altered the outcome of the decision referred to above.

If the Tinnitus claim was approved on the Decision Letter dated January 13, 2013, it would have increased my rating from 60% to 70% at the time.

Edited by Okichewy1

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Looks good to me. I have the same exact issue!! I was denied in 1998 when I got out out of the military. On my med board exam it stated high hearing loss and tinnitus, audio grams showing increase hearing loss, etc, guess rater didn't see that. Asked again in 2009 and was denied yet again. In 2014 I applied again and finally approved but only granted me back to 2014. I submitted a cue and still have not heard anything at all. About to submit a NOD now. VA had same exact information except for a 2014 c&p audiogram. On award letter the rater stated " there was a clear error on VA part in 1998 decision. If approved it would be about 40,0000.00 in back pay. I assume it will be denied somehow so they won't have to pay.

Mrs. Berta is an expert on CUE and NOD. Maybe she will respond.

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Yeah, 2014 must be the year of approving hearing loss and tinnitus claims. They denied my hearing loss again, but that is ok. I have hearing aids from the VA for that.

I was hoping she will respond, always liked reading what she has posted. Just wanted someone else that has done a CUE to see if I was missing anything.

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I think that claim is EXCELLENT!

I would only add one thing,.....I also put after

"This is a claim of CUE, (clear and unmistakable error),"under provisions of 38 USC 5109 (a).

Sometimes I put under auspices of 38 USC 5109 A.

Also here:

"In this Decision Letter, I was denied service-connection for Tinnitus."

I would add the date of the Cued decision and then state it is enclosed (and enclose it with the rating sheet if you have one) although you did put the date at the end of the CUE.

"In VA Training Letter 10-02 dated March 18, 2010, on page 7, item #5 it states: If service treatment records mention a complaint of tinnitus and the veteran." etc etc

I would actually put {enclosed) after that and enclosed a copy of this TL because VA (Bradley Mayes) issued a Fast Letter on the same date (FL 10-02)that they could easily mistake for the TL 10-02.

I would also list (hpefully this can all get on one page- (the BEST way to file a CUE)

As Evidence enclosed, both of those items.

And put your C file number name and address on the TL enclosure. You might only need to enclose the first and 7th page.and you can highlight the statement they need to read.

Other then that is FABULOUS and you did this VERY well.!

If anyone searches CUE template here now both this and mine will pop up..

I am glad your VSO supports this. This is a Valid CUE claim. GOOD LUCK!

I send everything ,via USPS priority with proof of service, and tracking slip and I attach the print off from USPS tracking service on line, when they (VA) receive its, to my copy of the claim.

( VA is presently working on 2 claims I filed in 2012 and then one suddenly disappeared off their PCs and even IRIS would not comment on it's whereabouts.

One ISIS response I got when I questioned it last year was basically...'thank you for your suggestions, have a nice day' WTF?

I had proof that they received it via USPS (they did this with my AO claim too) and suddenly, when I was ready to raise cane,( maybe I did by replying with a 'suggestion' to them Ha Ha ) it suddenly came back on the PC and they verified they have it 2 days ago by phone from a real person from my RO who read the basis of both of the claims to me so I know he didn't make anything up..........)

An Excellent CUE claim!!!!!

Edited by Berta
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gee I forgot to throw in my most favorite regulations of all

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

§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

If you feel this applies to your evidence, it would be icing on the cake.

  • Like 3

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