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63Charlie

Tinnitus CUE Help Please

Question

Here's what I have so far.

 

EVIDENCE OF CUE

Appellant asserts that the unfavorable decision rendered on May 12, 2016, involving denial of service connection for tinnitus constitutes a clear and unmistakable error.

 

Unfavorable Decision:

In the May 12, 2016 decision letter, it is stated, " Service connection for tinnitus is denied because the medical evidence of record fails to show that this disability has been clinically diagnosed."

 

 Rebuttal of Unfavorable Decision:

" A veteran is competent to report symptoms of hearing loss and/or tinnitus as a disability because symptoms of hearing loss and tinnitus are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370(2002); and Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, a veteran's testimony regarding hearing loss and/or tinnitus is sufficient to serve as evidence that the disability(ies) currently exists.

Whereas... when the compensation claim for tinnitus was initiated, the veteran reported ringing in his ears. Ringing in the ears was reported during the C&P examination. VA health records further indicate multiple complaints of ringing in the ears was reported while receiving medical care by the VA.

 

Q: How do I submit a CUE ?   Is there a form or anything?

I have filed a NOD on the claim but haven't raised a CUE yet.

 

Q: Is there anything I'm missing or need before I submit the CUE ?

 

 

Edited by 63Charlie

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The CUE does not rest on the fact that you are incapable of testimony as to what comes to you via your five senses, sir (Layno v. Brown (94). It is because you need a risk factor or testimony from a medical person with medical training in hearing to state your defect is service connected. If you had no risk of exposure in service, then you cannot point to any relationship it is service connected. It is not necessary to always have a medical record to win a tinnitus claim, but it is essential to have a MOS or AFSC that supports exposure to acoustical trauma.

CUE is a difficult concept for even a skilled VA attorney which is why most won't touch them unless they can see the error as glaring. Read this one and then come back and present your theory anew. Perhaps you can shed more light on it after a nuanced reading of why it isn't CUE. I often play devil's advocate and argue against my own contentions to see how VA might view it. 

https://asknod.org/2014/05/02/cue-the-quintessential-elements/

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 MOS was tracked vehicle mechanic.

Fast Letter 10-35 states my MOS had a high probability of exposure to high noise levels.

C&P examiner opined it is less likely as not service connected due to delayed onset factor.

 

Thanks for your opinion.

Your opinion changed my mind on the CUE.

Too adversarial of a process for me.

I had already made an appointment to see an audiologist Monday.

Hoping I can get new and material evidence to present and the VA will reopen the claim.

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Did the denial consider the VA Training Letter in this BVA case?

“REMAND

 

Pursuant to the January 2015 JMR, the parties noted "that VA Training Letter 10-02 at 5 (Mar. 18, 2010), acknowledges that '[t]he onset [of tinnitus] may be gradual or sudden, and . . . [t]innitus can be triggered months or years after an underlying cause (such as hearing loss) occurs.  Therefore, delayed-onset tinnitus must be considered'."  The JMR further determined that a "February 2011 [VA] examination report does not fully address the concept of delayed-onset tinnitus or the precepts noted in VA Training Letter 10-02."  The JMR therefore concluded that service connection for tinnitus should be remanded for another VA opinion.

 

In providing this opinion, the examiner should specifically consider the provisions of VA Training Letter 10-02: that the onset of tinnitus may be gradual or sudden, and individuals are often unable to identify when tinnitus began; that tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs; and that, therefore, delayed-onset tinnitus must be considered.”

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files4/1529039.txt

I am sure TL 10-02 is here under a search.

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There does not seem to be a compelling reason to file a CUE AND a nod.  The NOD has a lower standard of review, and, since you filed the NOD in a year, you need not prove the CUE (which has a higher standard of review) to get SC for tinnitus.  

The benfit of the doubt, which you give up when you file a CUE, may be extremely important.  

Filing a CUE is mostly for when you failed to file a NOD within a year.  However, Berta has had good luck filing a CUE to reverse a bad decision quickly, sometimes.  

It helps to understand CUE when you think of it as a "standard of review" instead of some kind of obvious error.  You see, many/most "obvious" errors are not Cue.  One example of an obvious error is if VA mispelled a word in your decision.    This is not CUE, even tho its an obvious and provable error, because CUE errors are outcome determinative, and a spelling error wont affect the outcome.  

Back to your case, you allege that it was obvious you claimed ringing in the ears at the C and P exam.  While this is favorable evidence, the rating specialist takes in both favorable and unfavorable evidence.  As Alex pointed out, the Veteran reporting ringing in the ears does not establish a nexus to military service.  You may well have tinnitus, but that does not mean military service caused your tinnitus.  Until/unless a doctor supplies a nexus, that denial will likely stand.  

HOwever, the  VA is required to supply a valid reasons and bases for denial.  They may have erred there.  The reasons and bases should state that the evidence shows you have tinnitus, but the record fails to show a causal link of your tinnituts to service.  (If this is indeed the case, I have not read your file).  This would mean a faulty reasons and bases for denial, not CUE, because, among other things, you have not shown the faulty reasons and bases is outcome determinative.    In other words, lets say you have tinnitus, and its documented.  VA denies because its not documented.  However, you still dont have the Caluza triangle of diagnosis, in service event and nexus.  Without all three of these, it isnt CUE, because its not outcome determinative as you wont get benefits no matter what without the Caluza triangle.   So, the VA will argue that its reasons and bases is "harmless error" because you did not have the Caluza triangle (lack a nexus and in service event), so you can not receive compensation and the errorouneous reasons is simply harmless errror that wont affect the outcome because you dont qualify for benefits.  

For you to move forward to get benefits for tinnituts, you need to concentrate on the Caluza triangle.  Order your cfile, and see if its documented in your file.  If your nexus and link to service IS documented, then you may file a 39cfr 3.156 New and material evidence as it sounds like VA lost or shredded some portion of your medical records.  

As of right now, VA can shred a page of your records, in front of the VAOIG, and it is not CUE.  If shredding were CUE, then I would have filed a CUE long ago and won.  One reason shredding is not CUE, is because that document is destroyed, and I can not prove that document had probative evidence in it, because I can not even prove what that document was..its gone now.  

Edited by broncovet

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You need to complain about the ringing or buzz/humm sounds in your Head  to the Audiologist Dept

This is Known as Tinnitus and you could have it with or without hearing loss .

MOS is for any loud noise you were around during your military service  MOS is  evidence to the fact you were around loud sudden noise while in military  and the loud noise can induced bilateral hearing loss by damage of the inner ear.

There is no current known reason Tinnitus may occur in some people..so in the case of us veterans we need to let the Authorities (Ear Dr's) Know we have it.

 

 

 

 

 

 

 

 

 

 

 

 

 

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