VA CUE Request

[melonbread 1]

I submitted new claims back in March 2016 and received partial decision for 30% increase for post traumatic vertigo as secondary to my 40% TBI. I was waiting on my ear and tinnitus claim to be completed and as those two claims closed out I received a notice to retract my previous partial rating of 30% increase for post traumatic vertigo. I'm little lost of what I should do and seeking advice from you all.

Whether the evaluation assigned for post traumatic vertigo was clearly and unmistakably erroneous.

Clear and unmistakable errors are errors that are debatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. a determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. once a determination is made that there was  a clear and unmistakable error in a prior decision that would change the outcome, then  that decision must be revised to conform to what the decision should have been. In this case, the disability evaluation is reduced because the previous decision was a clear and unmistakable error.

The rating decision of April, 2016, contains clear and unmistakable error in the establishment of a separate 30 percent evaluation for post-traumatic vertigo. The decision in question established a separate evaluation using a symptom of traumatic brain injury (TBI) already evaluated under the faucets of TBI evaluation, as vertigo is a subjective symptom that is already considered in the faucet of the TBI criteria.

The evaluation of the same disability under various diagnoses is impermissible under the laws governing service-connected compensation benefits (38 CFR 4.14). Evaluations concerning residuals of TBI require that a VA decision-maker evaluated each condition separately, as long as the same signs and symptoms are not used to support more than once evaluation, and combine the evaluations for each separately rated condition. remaining residuals that cannot be attributed to distinct diagnosed conditions as result of TBI are considered under the aforementioned facets and single evaluation is assigned (38 CFR 4.124a).

As the etiology of your vertigo was noted to be symptomatic residual symptom of traumatic brain injury rather than an etiologically distinct diagnosis, there is no basis upon which to establish a separate disability evaluation for this condition. As such, the current evaluation is proposed to be discontinued effective Mary 2016, the date it was erroneously established; upon final discontinuance, this condition will be evaluated as a symptom of TIB and combined accordingly.

Your overall evaluation is proposed to reduced from 80 percent to 70 percent as a result of this discontinuance. Please note, as this reduction is the result of VA error, no overpayment will be created as a result of discontinuance.

 

[Berta 3,012]

Unfortunately the VA is correct from what I see here.

But the hearing loss problems could relate to the  vertigo etiology as well. Yet that would take an Audiology IME.

Then again the HL and tinnitus could help you maintain the 70%, maybe even more %.

Are you employed? If not You should file for TDIU.

This is unfortunate. VA makes errors all the time.

[broncovet 3,293]

Well, they are proposing a reduction from 80 to 70, they say, because they made an error and paid you twice for vertigo.  

I agree their explanation does not make sense.  Vertigo can be a symptom of ear problems, or of TBI.  

How frequently do you have vertigo??

Here is 38 CFR 4.87, in reference to Vertigo:

6205Meniere's syndrome (endolymphatic hydrops):
Hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus	100
Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus	60
Hearing impairment with vertigo less than once a month, with or without tinnitus	30
Note: Evaluate Meniere's syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

Edited May 31, 2016 by broncovet

[broncovet 3,293]

You may need to appeal just on the vertigo issue alone. (It wont hurt to appeal other issues also.)  How bad is your TBI??

 

[melonbread 1]

thank you for your replies.

Berta: I currently work and plan to do so unless/until I start losing it a little more and I see no other option but to venture into TDIU. I'm in mid 30s and have young kids so I'll need to continue working.

Broncovet: My vertigo is usually once a 2-3 weeks but recently had few falls right outside the house which led me to hospital. nothing serious but cuts and bruises at this point but started worry me a bit. VA had me do complete balance test and revealed I have abnormal balance issue.

I don't know how to reply back to your question regarding TBI... I'm just out of it most of the times and I try extra hard to concentrate to get things completed that others may not realize. BLUF, I rely on my wife heavily on daily basis. I'm not sure if I'll still be here without her support and guidance.

 

I last read the letter one more time and I thought VA is recommending to re-evaluate my TBI residual symptoms to include the vertigo? my current rating for TBI is residuals from memory loss and concentration.

how should I go about the appeal? do I visit VSO and express my concerns? is it even worth it when it's pretty clear of VA's mistake? thanks a bunch again.

 

[asknod 1,481]

Oh, Berta, Berta, Berta. Remember the rules of CUE we learned in Error 101. The same rules apply to VA in CUE spades. Now, VA is attempting to CUE themselves so we must give it Russell-like introspection. 

While it can be said that if, and that's a very big IF, there was CUE, then 4.14 kicks in but VA is trying to insert the regulation in before CUE has been ascertained. One doesn't know if the rater, in his infinite wisdom was also giving more for vertigo based on the evidence, extra schedular  sympathy-or... if it was actually CUE. Did it manifestly change the outcome? Re-examining evidence for a possibly different interpretation to call out CUE can never be grounds for it. Unless VA can clearly and unequivocally prove that extensive, remarkable vertigo was not the rationale for granting 30% and; if they can prove the evidence could never be interpreted differently; and if they could prove that the error manifestly changed the outcome or that the error was outcome determinative, then they can sustain CUE. I'm sorry. I don't see CUE. I see a mistake, possibly an extremely dumb one but does it rise to the very high standard of CUE? Maybe, maybe not but you and I know that bar is so high after MacKlem as to almost be insurmountable when VA calls themselves a CUE.